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Jabar v PP [1995] 1 SLR 617:

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Categories: CaseLaws

Pendakwa Raya v Kok Wah Kuan [2007] 5 MLJ 174:

PP v. KOK WAH KUAN
FEDERAL COURT, PUTRAJAYA
[CRIMINAL APPEAL NO: 05-46-2007 (W)]
AHMAD FAIRUZ CJ , ABDUL HAMID MOHAMAD PCA , ALAUDDIN MOHD SHERIFF CJ (MALAYA) , RICHARD MALANJUM CJ (SABAH & SARAWAK) , ZAKI TUN AZMI FCJ
23 OCTOBER 2007

 

JUDGMENT

 

Abdul Hamid Mohamad PCA:

 

[1] The respondent who was 12 years and 9 months old at the time of the commission of the offence was charged in the High Court for the offence of murder punishable under s. 302 of the Penal Code. He was convicted and ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s. 97(2) of the Child Act 2001 (Act 611) (“the Child Act”). He appealed to the Court of Appeal. The Court of Appeal upheld the conviction but set aside the sentence imposed on him and released him from custody on the sole ground that s. 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed to this court.

 

[2] On what ground did the Court of Appeal hold s. 97(2) of the Child Act to be unconstitutional?

 

[3] From the judgment of the Court of Appeal, it can be seen that that court had arrived at that conclusion on the following premises:

 

(i) The doctrine of separation of powers is an integral part of the Constitution;

(ii) Judicial power of the Federation vests in the courts;

(iii) By s. 97(2) of the Child Act, Parliament had consigned the power to determine the measure of the sentence that was to be served to the Yang di-Pertuan Agong in the case of an offence committed in the Federal Territories, or to the Ruler or the Yang di-Pertua Negeri, if the offence is committed in the State.

(iv) By virtue of art. 39 of the Constitution, the executive authority of the Federation vests in the Yang di-Pertuan Agong who, in accordance with art. 40 of the Constitution, must act in accordance with the advice given by the Cabinet or particular minister of the Cabinet.

(v) Therefore, s. 97(2) of the Child Act contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence to be served by the appellant.

 

[4] Before going any further I will first reproduce the relevant provisions of the Constitution and the Child Act. Article 121 of the Constitution provides:

 

121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely:

(a) one in the States of Malaya … and;

(b) one in the States of Sabah and Sarawak … and the High Courts … shall have such jurisdiction and powers as may be conferred by or under federal law. (emphasis added)

 

[5]Article 4(1) of the Constitution provides:

 

4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

 

[6]Section 97 of the Child Act provides:

 

97. (1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release of further detention of that person,

and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

 

[7] The Court of Appeal posed two questions for it to answer. They are, first, whether the doctrine of separation of powers is an integral part of the Constitution and, secondly, whether s. 97 of the Child Act “in pith and substance violates the doctrine.” The Court, answered the two questions in the affirmative. On the first question, the court held that the amendment to art. 121 of the Constitution by Act A 704 did not have the effect of divesting the courts of the judicial power of the Federation. The court gave two reasons:

 

First, the amending Act did nothing to vest the judicial power in some arm of the Federation other than the courts. Neither did it provide for the sharing of the judicial power with the Executive or Parliament or both those arms of government.

Second, the marginal note to art. 121 was not amended. This clearly expresses the intention of Parliament not to divest ordinary courts of judicial power of the Federation and to transfer it to or share it with either the Executive or the Legislature.

 

[8] Let us take a close look at the provision of art. 121 of the Constitution before and after the amendment.

 

[9] Prior to the amendment, art. 121(1) of the Constitution reads: “… the judicial power of the Federation shall be vested in the two High Courts … and the High Courts … shall have such jurisdiction and powers as may be conferred by or under federal law.

 

[10] There was thus a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. So, if a question is asked “Was the judicial power of the Federation vested in the two High Courts?” The answer has to be “yes” because that was what the Constitution provided. Whatever the words “judicial power” mean is a matter of interpretation. Having made the declaration in general terms, the provision went of to say “and the High Courts … shall have jurisdiction and powers as may be conferred by or under federal law.” In other words, if we want to know what are the specific jurisdiction and powers of the two High Courts, we will have to look at the federal law.

 

[11] After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that “judicial power of the Federation” as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law. If we want to call those powers “judicial powers”, we are perfectly entitled to. But, to what extent such “judicial powers” are vested in the two High Courts depend on what federal law provides, not on the interpretation of the term “judicial power” as prior to the amendment. That is the difference and that is the effect of the amendment. Thus, to say that the amendment has no effect does not make sense. There must be. The only question is to what extent?

 

[12] In Public Prosecutor v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284, s. 418A of the Criminal Procedure Code came into question as it was argued that it infringed art. 121(1) and 5(1) of the Federal Constitution. Zakaria Yatim J (as he then was) held that s. 418A of the Criminal Procedure was unconstitutional as it was inconsistent with art. 121(1) of the Constitution. Appeal to the Supreme Court was dismissed by a majority of 3:2. That case was decided, not on the ground that it was inconsistent with the doctrine of separation of powers. It was decided on the ground that it was inconsistent with the term “judicial power” of the court then provided by art. 121(1) of the Constitution. In other words s. 418A was inconsistent with the specific provision of the Constitution that provides “… the judicial power of the Federation shall be vested in two High Courts …” The inconsistency then attracts art. 4(1) of the Constitution which declares such a law, to the extent of the inconsistency, be void.

 

[13] What about the instant appeal? In the instant appeal, even the Court of Appeal’s judgment does not, indeed cannot, show which provision of the Constitution s. 97 is inconsistent with. Instead the court held that that section violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution.

 

[14] What is this doctrine of separation of powers? Separation of powers is a term coined by French political enlightenment thinker Baron de Montesquieu. It is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. The principle traces its origins as far back as Aristotle’s time. During the Age of Enlightenment, several philosophers, such as John Locke and James Harrington, advocated the principle in their writings, whereas others such as Thomas Hobbes strongly opposed it. Montesquieu was one of the foremost supporters of the doctrine. His writings considerably influenced the opinions of the framers of Constitution of the United States. There, it is widely known as “checks and balances”. Under the Westminster System this separation does not fully exist. The three branches exist but Ministers, for example, are both executives and legislators. Until recently, the Lord Chancellor was a member of all the three branches – see generally ECS Wade and A W Bradley: Constitutional and Administrative Law 10th edn; Wikipedia (Encyclopedia).

 

[15] In P. Ramanatha Aiyar’s Advance Law Lexicon, vol. 4, we find the following passage:

 

It is extraordinarily difficult to define precisely each particular power. – George Whitecross Paton, A Textbook of Jurisprudence 330 (G.W. Paton & David P. Derham eds., 4th ed. 1972).

A political system that separates executive, legislative, and judicial powers of government into separate branches. Some systems combine two, or even all three, powers into single institutions. In the United States, many administrative agencies actually exercise at least first level judicial powers, and many administrative agencies also exercise what amount to legislative powers in promulgating detailed legal regulations: In other systems, the absence of a separation of powers, particularly between the executive and the legislative, is more explicit … as in the Westminster-style parliamentary system.

 

[16] Malaysia, like the United States has a written Constitution that spells out the functions of the three branches. At the same time it follows the Westminster model and has its own peculiarities. The Yang di-Pertuan Agong is the Supreme Head of the Federation (art. 32(1)). The executive authority of the Federation is vested in the Yang di-Pertuan Agong (art. 39). He is the Supreme Commander of the armed forces of the Federation (art. 41). Parliament consists of the Yang di-Pertuan Agong, the Dewan Negara and Dewan Rakyat (art. 44). While members of the Dewan Rakyat are directly elected, members of the Dewan Negara may be elected by the Legislative Assembly of the States or appointed by the Yang di-Pertuan Agong (art. 45(1) and Seventh Schedule). Judges, including the Chief Justice are appointed by the Yang di-Pertuan Agong. Even the principal registry of the High Court of Sabah and Sarawak is determined by the Yang di-Pertuan Agong (art. 121(1)(b)). On top of all that, the Yang di-Pertuan Agong, unlike the British Monarch, is elected by the Conference of Rulers for a fixed period of five years. And so on.

 

[17] In other words we have our own model. Our Constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent with the Constitution and therefore void.

 

[18] So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers. As Raja Azlan Shah FJ (as His Royal Highness then was) quoting Frankfurter J said in Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC said: “The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”

 

[19] His Lordship further said:

 

Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording “can never be overridden by the extraneous principles of other Constitutions” – see Adegbenro v. Atkintola & Anor [1963] 3 All ER 544, 551. Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from a desire to see how their progress and well-being is ensured by their fundamental law.

 

[20] I agree entirely with those observations.

 

[21] Now that the pre-amendment words are no longer there, they simply cannot be used to determine the validity of a provision of a statute. The extent of the powers of the courts depends on what is provided in the Constitution. In the case of the two High Courts, they “shall have such jurisdiction and powers as may be conferred by or under federal law.” So, we will have to look at the federal law to know the jurisdiction and powers of the courts. (In the case of the Federal Court and the Court of Appeal, part of their jurisdiction is specifically provided in the Constitution itself – see art. 121(1B) and (2) respectively).

 

[22] So, even if we say that judicial power still vests in the courts, in law, the nature and extent of the power depends on what the Constitution provides, not what some political thinkers think “judicial power” is. Federal law provides that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the commission of the offence. That is the limit of judicial power of the court imposed by law. It further provides that, instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang Di-Pertua Negeri, depending on where the offence was committed. That is the sentencing power given by federal law to the court as provided by the Constitution. Similarly, in some cases, federal law provides for death sentence, in others, imprisonment and/or fine, some are mandatory and some are discretionary. The legislature provides the sentences, the court imposes it where appropriate.

 

[23] Going one step further, even where the court imposes a sentence of imprisonment for a fixed term of more than a month, a prisoner is entitled to be granted a remission of his sentence. The Director General of Prisons may cancel any part of the remission if the prisoner commits an offence under s. 50 of the Act. He may restore to the prisoner all or any part of the remission which the prisoner has forfeited during his sentence – s. 44 of the Prison Act 1995 (Act 537) (“the Prison “Act”).

 

[24]Section 67 of the Prison Act empowers the Minister to publish in the Gazette such regulations, inter alia, providing for the remission of sentences to be allowed to a prisoner. Hence Prisons Regulations 2000 (P.U.(A) 325/2000) is made.

 

[25] We see here that the Prison Act empowers the Director General of Prisons to cancel and restore the remission which may be argued to amount to meddling with the fixed term of imprisonment passed by the court. Following the argument of the Court of Appeal, this should be unconstitutional too.

 

[26] Let us take another example. It is common for a statute to make provision for a Minister in charge of an Act of Parliament to make rules or regulations. The Minister is an executive. Rules and Regulations and by-laws, having the effects of law, is within the realm of the legislature to make, not the executive. Yet, I am unable to find any provision in the Constitution giving power to the legislature to make law to give the power to make such by-laws to the executive. So, are the provisions in the statutes giving Ministers power to make by-laws unconstitutional too on the ground that they contravene the doctrine of separation of powers? All these show the absurdity of applying the doctrine as a provision of the Constitution.

 

[27] All these examples show that the doctrine is not definite and absolute. The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country. Similarly, judgments from other jurisdictions, while they are useful comparisons, should not be treated as if they are binding on our courts. As such, I do not think it is necessary to discuss all those cases from other jurisdictions referred to us.

 

[28] On these grounds I would allow the appeal, set aside the order of the Court of Appeal and reinstate the order of the High Court.

 

[29] Ahmad Fairuz Sheikh Halim CJ, Alauddin Mohd. Sheriff CJ (M) and Zaki Azmi FCJ have read this judgment and agreed with it.

 

Richard Malanjum CJ (Sabah & Sarawak):

 

[30] This is an appeal by the Public Prosecutor against the decision of the Court of Appeal which upheld the conviction of the respondent but set aside the sentence imposed and released him from custody on the ground that s. 97(2) of the Child Act 2001 (Act 611) was unconstitutional.

 

[31] I need not summarize the reasons given by the Court of Appeal since it has already been admirably done in the judgment of the learned President of the Court of Appeal.

 

[32]Section 97 of the Child Act reads:

 

(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person, and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

 

[33] On plain reading of subsection (2) of s. 97 it is clear that it empowers the court, after convicting a person who was a child at the time of commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. In my view the alternative power to make such an order as provided for by the subsection is no less than the power of the court to impose a sentence or punishment on a child convict albeit in a different form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or to the Yang di-Pertua Negeri depending on where the offence was committed.

 

[34] Hence, with respect I do not think there is anything unconstitutional in the scheme since it is still the court that makes the order consequential to its conviction order. In my view when the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea. (See: Public Prosecutor v. Jafa bin Daud [1981] 1 LNS 28; Standard Chartered Bank and Others v. Directorate of Enforcement and Others [2005] AIR SC 2622). Incidentally s. 183 of the Criminal Procedure Code provides: ‘If the accused is convicted, the Court shall pass sentence according to law’.

 

[35] It might have been a different conclusion if the subsection leaves it entirely to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri as the case may be to deal with a child convict after being convicted by the court.

 

[36] For the above reason I do not think it is thus necessary for me to deal with those constitutional points highlighted by the Court of Appeal in coming to its decision.

 

[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to law for those who come before them.

 

[38] The amendment which states that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.

 

[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:

 

(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever “may be conferred by or under federal law”. The words “federal law” are defined in art. 160(2) as follows:

Federal law means:

(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and

(b) any Act of Parliament;

(ii) The courts cannot obviously be confined to “federal law”. Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. Further, “written law” is defined in art. 160(2) to include “this Constitution and the Constitution of any State”. It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.

(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule “to preserve, protect and defend (the) Constitution”.

(iv) With respect I do not think the amendment should be read to destroy the courts’ common law powers. In art. 160(2) the term “law” includes “common law”. This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, “they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia”. Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.

(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of ‘judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law’. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.

(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to ‘leapfrog’ decades or centuries in order to apply it to the necessities of the times.

(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people’s rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).

(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:

1. Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an “original precedent” to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

2. Overruling earlier precedents

Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

3. Constitutional review

Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato’ Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.

Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.

Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.

4. Statutory interpretation

In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge’s attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.

When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.

One could also note, for instance, the “public interest” interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the “wider interest of the nation” prevailed over a minor’s right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant’s claim of a religious right to wear purdah at the workplace to the need to maintain “discipline in the service”.

A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because “law” in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

5. Operation of doctrine of binding precedent

The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.

Though a superior court is generally reluctant to disregard its own precedents, it does have the power “to refuse to follow” its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.

6. Application of doctrine of ultra vires

Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.

Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.

Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).

When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

7. Import of rules of natural justice

Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.

 

[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament.

 

[41] Anyway, reverting to this appeal, for the reason I have given earlier on I would therefore allow it and restore the order made by the High Court.

Categories: CaseLaws

Datuk Harun v PP [1976] 2 MLJ 116: S422 CPC – Incurable

HARUN BIN ABDULLAH v. PENDAKWA RAYA
HIGH COURT [SHAH ALAM]
ABDUL WAHAB PATAIL, J
[RAYUAN JENAYAH 42-34-95]
18 JANUARY 1997

 

ALASAN PENGHAKIMAN

 

Perayu tidak puas hati dengan keputusan Hakim Mahkamah Sesyen (HMS) yang diberikan pada 18/10/1995 dimana Perayu telah disabitkan salah dibawah seksyen 467 dibaca bersama dengan seksyen 471 Kanun Kesiksaan dan dijatuhkan hukuman 1) Penjara 5 tahun dari 18/10/1995 dan 2) Denda RM5,000.00 kalau tidak, 1 tahun penjara. Oleh itu Perayu merayu terhadap sabitan dan hukuman.

 

Perayu telah dibicarakan atas pertuduhan bahawa [Perayu] pada 14/10/1991 di alamat Lot 663 Jalan Kelinik didaerah Kuala Selangor dalam Negeri Selangor Darul Ehsan telah memalsukan cagaran berharga, iaitu lesen membeli senjata dan peluru Siri No. B 274599 memberi kuasa pemindahan palsu hak milik suatu senjata-api kepada Lee Poh Sin KP No. 3235499 dan dengan curangnya menggunakan cagaran berharga palsu tersebut sebagai satu cagaran berharga yang sah yang [dia] ada sebab mengetahui ia adalah palsu dan dengan itu [dia] telah melakukan satu kesalahan dibawah seksyen 467 KK dan boleh dihukum dibawah seksyen yang sama.

 

Alasan utama Perayu adalah bahawa, walaupun suatu ‘trial within a trial’ diadakan, HMS tidak memberi sebab-sebab bagi penerimaan percakapan beramaran. Bahagian 13 di muka surat 8 alasan penghakiman dirujuk oleh peguam untuk menyokong alasan rayuan ini.

 

Di bahagian 13 HMS berkenaan berkata seperti berikut:

 

“13) Mengenai Caution[ed] Statement yang dihujahkan oleh peguam Orang Kena Tuduh sebagai tidak patut diterima, Mahkamah memutuskan bahawa Mahkamah ada budibicara untuk menerima atau menolaknya sebahagiannya atau seluruhnya.

…….. .”

 

Kemasukkan percakapan beramaran Perayu sebenarnya telah dibicarakan dengan panjang dalam satu ‘trial within a trial’ dimana isu-isu berkaitan dibentangakan sebelum HMS membuat keputusan, seperti terkandung dalam nota keterangan:

 

“Setelah mendengar hujahan dan alasan-alasan peguam, Mahkamah tidak dapat (unable) untuk menerima hujahan peguam mengenai arahan yang kenyataan tersebut tidak boleh diterima. Ada keterangan-keterangan yang cukup menunjukkan bahawa amaran (statutory caution) telah sepenuhnya dan sempurnanya diterangkan/ditadbirkan kepada Orang Kena Tuduh dan tiada ugutan/pujukan/janji telah dibuat kepada orang kena tuduh.

Oleh sebab itu Trial-within-trial diteruskan dan Orang Kena Tuduh dipanggil untuk beri pembelaan dalam trial-within-trial ini.”

 

Setelah mendengar pembelaan dalam ‘trial within a trial’, HMS telah memutuskan:

 

“Setelah mendengar keterangan semua saksi-saksi dalam trial within a trial dan juga keterangan Orang Kena Tuduh, Mahkamah memutuskan bahawa percakapan beramaran telah di rakamkan seperti kehendak Seksyen 113 KAJ. Dengan itu percakapan beramaran Orang Kena Tuduh diterima sebagai eksibit dan [ditanda sebagai] P. 62.”

 

Kes Balasingham v PP (1959) 25 MLJ 193 adalah suatu kes dimana President Mahkamah Sesyen telah gagal seperti berikut:

 

(1) That the learned President gave no reasons why he accepted Wong Yong’s evidence and why he rejected the defendant’s.

 

Dalam mempertimbangkan rayuan itu, YA Ismail Khan J (seperti beliau dikenali pada masa itu) berkata:

 

There was therefore a direct conflict of evidence and a serious defence cannot be summarily dismissed as an improbable story without adequate reasons for such a conclusion”. I accepted Wong Yong’s version and rejected that of the defendant” may still leave the question open whether the burden of “introducing evidence” so as to raise a reasonable doubt has been discharged. The latter expression ” I rejected the evidence of the defendant” is, I consider, capable of different constructions; that the accused had not proved his innocence ; and/or that he had not by his explanation or the sum of the evidence raised a reasonable doubt in the mind of the learned President as to his guilt or that his explanation though not believed cannot be reasonably true. In any case I think it is a most unsatisfactory and cavalier way of dealing with highly controversial facts.

In addition such a laconic expression is far from helpful to the Appellate Court guided only by the printed evidence to ascertain whether the conviction is against the weight of the evidence. But here I find substantial reasons for interference. An appeal is merely a continuation of proceedings by way of rehearing and litigants as well as the Appellate Court are entitled to know the reasons for the finding.

 

The trial Court is under a statutory obligation under section 308 of the Criminal Procedure Code to transmit to the Appellate Court the grounds of decision which convey to my mind a reasoned judgment on the facts and the law not merely the conclusion arrived at. The advantage of a “speaking” judgment needs no emphasis.

 

Dalam trial-within-a-trial kes ini, Perayu telah memberi keterangan atas sumpah. Keterangannya menentang atas isu-isu yang material. Alasan-alasan mengapa keterangannya tidak diterima perlu diberikan kerana:

 

After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances. (Balasingham v PP)

 

Kegagalan dalam kes itu mengakibatkan:

 

It would have been of great advantage to me if I could have had the reasons for the learned President’s finding as without them it is difficult to say whether or not the reasons are adequate. nor would it be possible to assess the considerations, if any, given to the particular fact or facts proved or disproved. It now remains for me to analyze the evidence in some detail so as to arrive at some conclusion whether the learned President was justified in summarily rejecting the evidence of the appellant.

 

Jelas dalam kes ini HMS hanya membuat keputusan setelah mendengar hujah- hujah dari kedua pihak. Sememangnya seorang HMS tidak boleh lari dari memberi keputusan. Tetapi keputusan tersebut haruslah berpandukan kepada kehendak-kehendak undang-undang bagi fakta-fakta yang perlu dibuktikan.

 

Perayu telah memberi keterangan atas sumpah dalam trial-within-a-trial. Dia menegaskan bahawa T/OCCI Mohd Zin berjanji bahawa kalau dia mengaku, dia diberi peluang ambil cuti dan bersara, dan tindakan Mahkamah tidak akan diambil. T/OCCI menafikan perkara ini, begitu juga DSP. Subramaniam yang dikatakan hadir dalam perjumpaan dengan Perayu di Bilik Gerakan pada jam 2.00pm menafikan adanya apa-apa perjanjian. DSP Subramaniam disokong oleh keterangan T/OCCI bahawa tidak ada janji dibuat kepada Perayu. HMS pula hanya berkata tanpa memberi alasan:

 

“Setelah mendengar keterangan semua saksi-saksi dalam trial-within-trial dan juga keterangan Orang Kena Tuduh, Mahkamah memutuskan bahawa percakapan beramaran telah dirakamkan seperti kehendak seksyen 113 KAJ. Dengan itu percakapan beramaran Orang Kena Tuduh diterima sebagai eksibit dan [dimasukkan sebagai] P. 62. “

 

Akibatnya Mahkamah ini sebagai suatu Mahkamah Rayuan tidak tahu apakah alasan HMS mengapa dia tidak menerima keterangan Perayu, dan kalaupun tidak dipercayai, mengapa ianya tidak menimbulkan apa-apa keraguan yang munasabah. Dari rekod, keterangan Perayu tidak sebegitu bercanggah dalam keterangan itu sendiri atau jelas sebegitu tidak mungkin untuk membolehkannya diketepikan atau ditolak secara terus. Tidak ada apa-apa dalam keterangannya yang sebegitu jelas tidak dapat diterima sehingga tidak perlu beri alasan. Oleh yang demikian HMS sepatutnya memberi alasan mengapa dia ketepikan keterangan Perayu.

 

Harus juga diperingati alasan-alasan yang diberi tidak perlu panjang lebar. Tidak perlu memeras otak dan akal dengan rasional, rasional yang kurang kaitannya dengan proses pemikiran atau pertimbangan yang objektif, sesuai dan munasabah.

 

Kumpulan alasan kedua adalah bahawa keterangan Chin Kim Sang (PW13) dan Lee Poh Sin (PW2) adalah keterangan rakan sejenayah. Peguam berhujah, berpandukan TN Nathan v PP [1978] 1 MLJ 134, Sarwan Singh v State of Punjab AIR 1957 SC 637 dan DPP v Kilbourne [1973] 1 All ER 440, bahawa HMS tidak membuat apa-apa dapatan tentang kebolehpercayaan kedua-dua saksi ini sebelum menimbang adanya sokongan kepada keterangan mereka.

 

PW13 pada awal keterangan memberitahu Mahkamah dia terima dari PW2 wang berjumlah RM16,000 dimana dia beri RM13,000 kepada Perayu, RM3,000 kepada Ng Kee Hup tetapi mengambil dari Ng Kee Hup RM100, dan katanya yang lain mungkin orang lain ambil. Dalam soal balas dia telah mengaku terima RM26,000 dimana dia beri RM13,000 kepada Perayu, RM3,000 kepada Ng Kee Hup dan mengambil RM 10,000 sebagai komisyen. Dia mengaku dengan itu dia telah menipu PW2. Adalah dihujah oleh kerana percanggahan dalam keterangan PW13 dan dengan pengakuan dia menipu PW2, keterangannya tidak boleh dipercayai.

 

Peguam berhujah bahawa didalam kes DPP v Kilbourne, seperti yang khasnya diterimapakai dalam TN Nathan v PP, Lord Hailsham berkata:

 

“Corroboration is only required or afforded if the witness requiring corroboration or giving it is otherwise credible. If his evidence is not credible, a witness’s testimony should be rejected and the accused acquitted, even if there could be found evidence capable of being corroboration in other testimony. Corroboration can only be afforded to by a witness who is otherwise to be believed. If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise.”

 

Secara ringkas, prinsip yang ditafsir oleh peguam untuk dipakai adalah bahawa, berkenaan seorang rakan sejenayah sebagai saksi, dimana keterangan sokongan diperlukan, mahkamah terdahulu harus menimbang apa saksi tersebut boleh dipercayai. Kalau keterangannya tidak dapat dipercayai, maka mahkamah tidak perlu melihat tentang adanya keterangan sokongan bagi menyokong keterangan rakan sejenayah tersebut. Keterangan sokongan tidak perlu dipertimbangkan apabila keterangan saksi rakan sejenayah tidak dapat dipercayai. Oleh itu mahkamah perlu membuat keputusan apa keterangan seorang saksi yang perlu dikoroborasi itu boleh dipercayai atau tidak sebelum menimbang keterangan sokongan.

 

Disini kita harus berhenti seketika untuk menimbang apa yang sebenarnya dimaksudkan. Keterangan seorang rakan sejenayah selalu diragukan oleh kerana ada kemungkinan dia coba memindah tanggungan atas kesalahan kepada orang lain, khasnya orang kena tuduh. Justeru itu sokongan yang material diperlukan sebagai koroborasi untuk mempastikan apa yang dia kata itu benar. Hakim hanya dapat pastikan kebenaran keterangannya kalau ada keterangan sokongan. Atas asas manakah seorang Hakim dikehendaki pastikan kebenaran keterangan seorang rakan sejenayah kalau kebenarannya harus dipastikan dahulu sebelum keterangan sokongan diambil kira? Jelas tafsiran itu terlalu mempermudahkan maksud DPP v Kilbourne.

 

Perkataan yang digunakan adalah “If a witness’s testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise.” Perkataan yang digunakan, ‘inanition’ berakar dari perkataan yang bermaksud ’empty’ atau kosong, dan bermakna satu kondisi atau kualiti kekosongan. Biasanya perkataan itu digunakan untuk maksud ‘kebuluran’. Oleh itu jelas yang dimaksudkan dalam kes DPP v Kilbourne adalah bahawa kalau keterangan saksi itu jatuh oleh kerana kekosongan atau kebuluran keterangan itu sendiri, misalnya jelas dari keterangan itu sendiri ianya suatu rekaan, maka mahkamah tidak perlu menimbangakan keterangan sokongan bagi keterangan itu, dan keterangan seperti itu tidak dapat memberi sokongan kepada keterangan yang lain.

 

Dalam kes TN Nathan v PP, perayu dituduh bersetuju menerima 20% dari komisyen atas premiam daripada seorang bernama Manickavasagam s/o Shanmugam. Manickavasagam telah membuat laporan sebagai pengadu dan seterusnya memberi keterangan sebagai saksi rakan sejenayah. Mahkamah setelah berpendapat bahawa si rakan sejenayah Manickavasagam tidak dapat diterima sebagai saksi yang boleh dipercayai memutuskan:

 

In our case, as the accomplice could not be considered a reliable or credible witness, the question of corroboration therefore did not arise.

 

Perkataan yang digunakan adalah ‘as the accomplice could not be considered a reliable or credible witness’ bukan ‘as an accomplice could not be considered a reliable or credible witness’. Iaitu, TN Nathan v PP tidak mengatakan bahawa seorang rakan sejenayah itu tidak boleh diterima sebagai seorang saksi yang boleh dipercayai. Hanya dalam keadaan fakta dalam kes itu, saksi berkenaan didapati tidak boleh dipercayai.

 

HMS dalam kes ini sebenarnya telahpun membuat dapatan walaupun PW2 dan PW13 adalah saksi rakan sejenayah, pengakuan saksi PW13 yang beliau berbohong dengan saksi PW2 mengenai wang, menunjukkan bahawa beliau seorang yang bercakap benar dan boleh dipercayai bila tiba di Mahkamah. Selepas itu barulah HMS menyenaraikan lain lain “material particular dalam kes ini untuk mensabitkan Orang Kena Tuduh, sebagai contohnya : …….”. Dapatan ini penting kerana dia adalah rakan sejenayah yang penting yang menguruskan transaksi diantara PW2 dan Perayu.

 

Percanggahan dalam keterangan PW13 adalah tentang jumlah yang dia ambil sebagai keuntungannya sendiri. Dia tetap dengan keterangan asal bahawa dia memberi RM13,000 kepada Perayu. Juga jelas, siapa Ng Kee Hup yang PW13 kata telah menerima RM3,000 tidak dipersoalkan dalam rayuan ini. Mungkin dia hendak menyembunyikan fakta dari Perayu atau PW2 dia telah mendapat keuntungan RM10,000 untuk diri sendiri. Dia mengaku dia tidak beri tahu PW2 dia akan ambil RM10,000. Sememangnya orang tengah yang cuba membuat keuntungan dari pihak lain tidak akan memberitahu berapakah keuntungan yang dia dapat dari mereka. HMS juga telah berpeluang melihat saksi ini disoalbalas, dan boleh membuat keputusan samaada dia boleh dipercayai atau tidak. Mahkamah ini berpendapat tidak ada apa apa yang menghalang HMS daripada memutuskan PW13 boleh dipercayai.

 

PW2 kata dia membayar RM26,000 kepada PW13 dihadapan Perayu. PW13 asalnya kata dia kurang pasti PW2 atau PW14 yang memberinya wang tersebut atau dimana wang diberi kepadanya. Dalam soalan semula dia menerangkan dia terima RM26,000 tetapi tidak ingat dirumah Perayu atau dikereta, tetapi membayar RM13,000 kepada Perayu dirumah Perayu pada hari yang sama. PW14 kata PW2 dan PW13 masuk kerumah Perayu lebih kurang 30 minit. Waktu itu dia tunggu dalam kereta. Dia hanya diberitahu oleh PW13 bayaran adalah RM26,000. Dia tidak lihat macam mana bayaran dibuat dan tidak lihat PW13 terima apa apa bayaran. Selepas itu mereka pergi beli senapang. Selepas beli senapang mereka balik ke rumah Perayu. Jelas dari keterangan PW14, bahawa keterangan PW2 dan PW13 disokong oleh keterangan PW14 dalam berberapa aspek yang penting, dan keterangan PW14 tidak dipertikaikan dalam rayuan ini. Tidak ada apa apa dalam keterangan PW14 yang menunjukkan keterangan PW2 dan PW13 tidak mungkin benar.

 

Mahkamah ini berpendapat HMS telah membuat keputusan PW13 boleh dipercayai, dan tidak ada apa apa yang jelas menunjukkan dapatan itu salah. Percanggahan dalam keterangan PW13 telah diakuinya sendiri dan oleh itu tidak menjejaskan kebolehpercayaan saksi ini. Akan tetapi dalam keadaan itu, keterangan PW13 perlulah ada koroborasi. Koroborasi terdapat dari PW2 dan PW14. Walaupun tidak ada perkataan-perkataan khas dari HMS bagi dapatan terhadap keterangan PW2, jelas dari keseluruhan penghakiman, keterangannya juga dipercayai oleh HMS. PW14 tidak disifatkan sebagai rakan sejenayah, oleh itu PW14 adalah saksi bebas. Keterangannya menyokong dalam berberapa perkara keterangan PW2 dan PW13. Selain itu ada keterangan keterangan lain yang disenaraikan oleh HMS sebagai koroborasi. Setelah meneliti penghakiman pada keseluruhannya, Mahkamah berpendapat tidak ada ketidakadilan berlaku atas kumpulan alasan ini apabila HMS memerima keterangan PW2 dan PW13.

 

Sebelum meninggalkan isu ini, perlu juga kita ambil perhatian seksyen-seksyen berikut dalam Akta Keterangan 1950:

 

Seksyen 114 (b):

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

 

Illustrations

(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars;

Seksyen 133

‘An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.’

 

Ternyata dari itu Akta Keterangan dalam seksyen 114 illustrasi (b) mengemukakan anggapan terhadap keterangan rakan sejenayah sebagai satu illustrasi sahaja, dan dalam seksyen 133 menjelaskan bahawa seorang rakan sejenayah boleh memberi keterangan terhadap seorang kena tuduh, dan sabitan hanya atas keterangan rakan sejenayah yang tidak disokong tidak salah. Akibat atau kesan kedua-dua seksyen ini dibaca bersama adalah menerima keterangan saksi rakan sejenayah sebagai keterangan saksi biasa. Seperti untuk mana-mana saksi biasa, adalah lebih baik kalau HMS dalam alasan penghakiman menulis dengan khas atau jelas dia mempercayai seseorang saksi itu atau tidak. Tetapi itu adalah pilihan gaya penulisan, dan kalau dari alasan tersebut menunjukkan dia percayai saksi berkenaan, itu adalah mencukupi.

 

Kumpulan alasan ketiga adalah bahawa Hakim Mahkamah Sesyen telah salaharahkan dirinya apabila berkali-kali kembali menyentuh tentang pilihan Perayu tidak memberi keterangan atas sumpah sebagai tidak ingin dan tidak berani disoalbalas. Peguam berhujah bahawa mengikut Mohamed Salleh v PP [1969] 1 MLJ 104, Mahkamah Persekutuan telah menetapkan bahawa walaupun seorang tertuduh memberi keterangan dari kandang dan tidak atas sumpah, hakim perlu memberi pertimbangan kepada keterangannya, walaupun mungkin keterangan itu tidak diberi timbangberat seperti keterangan atas sumpah dan setelah disoalbalas.

 

Dalam kes ini, HMS telah, dalam alasan penghakimannya berkata:

 

Per. 15:

…………….. Kalau Orang Kena Tuduh betul-betul mahu memperkukuhkan kesnya dan kenyataan ini kenapa beliau tidak memilih untuk beri keterangan bersumpah supaya beliau boleh disoalbalik oleh pendakwa. Sekurang-kurangnya Mahkamah boleh dapat lihat kebenarannya. Hanya bercakap atas isu dipujuk dan untuk jatuhkan imejnya adalah belum lagi melepaskan ‘burden’ nya.

Per 17:

 

……………. Pertukaran pilihan Orang Kena Tuduh untuk beri keterangan sedikit sebanyak telah dibuktikan diMahkamah bahawa kebolehpercayaan Orang Kena Tuduh tidak boleh dibuktikan langsung. Mahkamah percaya bahawa Orang Kena Tuduh tidak ingin dan tidak berani untuk disoalbalas mengenai kebolehpercayaannya sendiri. Walaupun Orang Kena Tuduh berhak untuk memilih cara mana ia hendak beri keterangan tetapi cara pilihannya untuk beri keterangan daripada kandang orang salah (Statement from the dock) sedikit sebanyak turut melemahkan lagi kes pembelaannya sendiri. Keterangan Orang Kena Tuduh adalah sebenarnya tidak bernilai langsung.

Per.18:

Mahkamah bersetuju dengan hujahan pendakwa bahawa kerana Orang Kena Tuduh tidak mahu/ingin/berani untuk disoalbalas oleh pihak pendakwa, ini menambah kuat lagi kes pendakwa terhadapnya khususnya mengenai keterangan dokumen-dokumen, eksibit-eksibit dan nama Lee Poh Sin yang dijumpai dirumahnya.

Per. 20:

Mahkamah berpeluang melihat dan memerhati Orang Kena Tuduh memberi keterangan daripada kandang orang salah (demenour) dan Mahkamah mendapati bahawa Orang Kena tuduh memberi keterangan secara teragak-agak, mengambil masa untuk memulakan sesuatu kenyataan yang hendak diucapkan. Sekiranya Orang Kena Tuduh seorang yang tidak ada niat salah kenapa mesti beliau teragak-agak untuk beri keterangan. Keadaan ini lebih ketara sekali apabila beliau rnemilih untuk tidak disoalbalas. Perumpa[maan] Melayu berkata “berani kerana benar, takut kerana salah”. Kalau Orang Kena Tuduh dipihak benar kenapa tidak mahu di soalbalas dan demenour masa beri keterangan pun tersekat-sekat.

Per 21:

 

…………… kegagalan/kesilapan Orang Kena Tuduh memilih keterangan walaupun beliau mempunyai peguam, secara tidak langsung telah mengagalkan kes pembelaan sendiri dan mengukuhkan kes pendakwa.

 

Daripada rujukan-rujukan sepenuhnya atas perkara ini, adalah didapati bahawa HMS telah memerhati Perayu semasa dia memberi keterangan dari kandang tertuduh dan mendapati dari cara dia memberi keterangan (per 20), dia gagal menimbulkan keraguan yang munasabah (‘burden’nya). Dalam perenggan 17, HMS telah merujuk kepada pertukaran Perayu kepada tidak memberi keterangan atas sumpah sebagai tidak ingin dan tidak berani disoalbalas, dan keterangan Perayu tidak bernilai langsung. Dalam ini HMS merujuk kepada fakta Perayu dalam ‘trial-within-a-trial’ telah memberi keterangan atas sumpah, tetapi pada akhir kes pendakwa telah memilih untuk memberi keterangan dari kandang tertuduh. Tidak ada apa-apa dalam penghakiman yang menunjukkan HMS telah menolak dari pertimbangan keterangan Perayu dari kandang tertuduh semata- mata oleh kerana keterangan itu tidak dibuat atas sumpah dan disoalbalas.

 

Dalam keterangannya dari kandang tertuduh Perayu menimbulkan semula bantahan kepada percakapan beramaran. Oleh kerana keterangannya atas isu ini atas sumpah telah ditolak dalam ‘trial-within-a-trial’, tidak mungkin kemudiannya akan diterima apabila diberi dari kandang tertuduh. Selain itu keterangannya adalah penafian, bahawa dia berkeluarga; setelah berkhidmat begitu lama tidak mungkin akan membuat kerja yang keji itu, dan saksi-saksi pendakwaan termasuk PW2 dan PW13 tidak benar, tidak berasas dan ingin menjatuhkan imej atau personalitinya sebagai ketua kerani. Selain itu tidak ada bukti dikemukakannya.

 

HMS seolah merungut Perayu tidak memberi keterangan atas sumpah dan disoalbalas dimana kebolehpercayaannya dapat diuji dan keterangannya dapat lebih ditimbang berat. Bahaya salahfaham adalah lebih dalam kes yang dibicarakan oleh juri seperti Mohamed Salleh v PP. Kes ini dibicarakan oleh HMS sendiri.

 

Pilihan perkataan oleh HMS mungkin boleh diperbaiki, tetapi maksudnya masih boleh dikesan: kes pembelaan lebih kuat kalau keterangan diberi atas sumpah dan disoalbalas apabila dibandingkan dengan keterangan sebaliknya dan kalau mahu perkuatkan kesnya kenapa tidak beri keterangan atas sumpah; dan jelas tidak ada kemungkinan HMS berkenaan telah tidak ambilkira keterangan Perayu semata mata ianya dibuat dari kandang tertuduh tanpa atas sumpah dan disoalbalas.

 

Oleh yang demikian rayuan atas alasan ini ditolak.

 

Kembali kepada alasan utama rayuan, perlu dipertimbangkan sekarang apakah akibat kegagalan HMS memberi alasan bagi keputusannya untuk menerima masuk percakapan beramaran Perayu.

 

Dalam kes Balasingham v PP, selain ketidakadaan alasan diberi apabila menerima keterangan saksi pendakwa dan menolak keterangan saksi orang kena tuduh,

 

P.W.1 Inspector Chong said in his evidence: “Wong told me that there was no need to give the $20. He said $5 would be sufficient which was the usual amount.” Now this statement of P.W.3 is one made in the course of investigation and its admission is clearly in contravention of section 113 of the Criminal Procedure Code. There is another serious illegality. P.W.3 was allowed to give evidence that appellant “caused trouble to others.” This is evidence that appellant is a person likely to have committed the offence and is clearly irrelevant and inadmissible. It is true that the learned President does not refer to such evidence in his judgment but the possibility that it might have influenced his decision cannot be excluded.

I consider it unfair to the appellant having regard to the unsatisfactory nature of the prosecution evidence to put him to the peril of a retrial. Accordingly I allow the appeal. The conviction is quashed and the sentence set aside. …….

 

Dalam kes Balasingham v PP keterangan yang dimasukkan adalah keterangan yang memang tidak boleh diterima. Dalam kes dihadapan Mahkamah ini, percakapan beramaran bukan sememangnya tidak boleh dimasukkan seperti dalam Balasingham v PP. Suatu ‘trial-within-a-trial’ telah diadakan. Malangnya HMS gagal memberi alasan mengapa keterangan Perayu ditolak. Tetapi jelas keterangan Perayu ditolak.Kegagalan itu adalah teknikal. Keterangan Perayu mungkin ditolak kerana keterangan DSP Subramaniam disokong oleh T/OCCI tetapi keterangan Perayu tidak. Mungkin kerana isu janji ini tidak ditimbulkan oleh peguam semasa DSP Subramaniam asalnya disoal balas. Hanya selepas keterangan DSP Subramaniam sudah tamat dan dia dipanggil semula selepas keterangan K/Insp. Jaafar bin Ahmad selesai memberi keterangan pada hari kemudian, barulah DSP Subramaniam dipanggil semula dan disoal atas perkara ini. Mungkin oleh itu tuduhan Perayu tidak ditimbang berat. Pendek kata percakapan beramaran dalam kes ini bukan satu satunya keterangan yang lansung tidak boleh diterima masuk seperti perkara- perkara dalam Balasinghan v PP diatas.

 

Walaupun Mahkamah ini bukan tempat untuk meneka rantai pemikiran atau alasan yang dipakai oleh HMS, tidak dapat dinafikan Perayu selain dari mengemukakan tuduhannya, tidak ada apa-apa keterangan lain dikemukakan. Atas kedudukan sedia ada, tidak dapat dikatakan penolakan keterangan Perayu salah atau tanpa asas, melainkan kegagalan teknikal untuk memberi alasan. Percakapan beramaran itu juga tidak disentuh atau dipakai dalam alasan penghakiman. Kemungkinan ia mempengaruhi keputusan HMS sangatlah jauh dalam fakta kes ini. Daripada nota keterangan dan alasan penghakiman jelas ada keterangan-keterangan lain yang mencukupi bagi sabitan, dan tidak mungkin sabitan tidak akan dibuat tanpa pengaruh daripada kemasukkan percakapan beramaran.

 

Pada amnya apabila keterangan yang tidak boleh diterima dimasukkan, seharusnya sabitan dan hukuman diketepikan, dan soal yang timbul adalah apa pertuduhan itu harus dibicarakan semula. Kes ini berlainan kerana isu terlibat hanya kegagalan HMS memberi alasan menolak keterangan Perayu dalam ‘trial-within-a-trial’, dimana dari nota keterangan tidak ada apa-apa yang menunjukkan HMS semestinya salah dalam menolak keterangannya. Seperti disenaraikan dalam alasan penghakiman, HMS mempunyai alasan-alasan lain untuk sabitan, dan oleh itu Mahkamah ini berpendapat tidak perlu kes ini dibicarakan semula.

 

Seksyen 167 Akta Keterangan 1950 adalah memberi panduan dalam keadaan ini.

 

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it appears before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

 

Maka rayuan dengan ini ditolak dan sabitan serta hukuman dikekalkan.

 

ABDUL WAHAB PATAIL

 

HAKIM

 

MAHKAMAH TINGGI SHAH ALAM

 

Bertarikh: 18 January 1997

 

————————————————————————————————————

[Appeal dismissed ]

Categories: CaseLaws

Merdeka University v Government [1982] 2 MLJ 243:

MERDEKA UNIVERSITY BERHAD v. GOVERNMENT OF MALAYSIA
FEDERAL COURT [KUALA LUMPUR]
CIVIL APPEAL NO 236 OF 1981
SUFFIAN, LP, RAJA AZLAN SHAH, CJ (MALAYA), SALLEH ABAS & ABDUL HAMID, FJJ; AND SEAH, J, DISSENTING
15 FEBRUARY 1982, 16 FEBRUARY 1982, 17 FEBRUARY 1982, 18 FEBRUARY 1982, 19 FEBRUARY 1982, 22 FEBRUARY 1982, 23 FEBRUARY 1982, 25 FEBRUARY 1982, 26 FEBRUARY 1982, 6 JULY 1982

 

Suffian LP

 

(delivering the Judgment of the Court): The judgment which I am about to deliver is the joint judgment of the Chief Justice, Salleh Abas, F.J. Abdul Hamid, F.J. and myself.

 

This appeal arises out of the rejection by His Majesty the Yang di-Pertuan Agong of the petition of the plaintiff for permission to establish a private university, Merdeka University (“MU”), which rejection was held by the learned trial Judge to have been lawful. Background Of Events

 

The background is as follows.

 

The idea of founding MU was formed in 1967 through the initiative of certain Chinese guilds and associations under the leadership of the United Chinese School Committees’ Association and the United Chinese School Teachers’ Association (“the two Associations”). On April 14, 1968 at an inaugural meeting of Chinese guilds and associations from all over the country held at the Chinese Assembly Hall in Kuala Lumpur for the proposed university, a Proclamation was passed and approved together with a draft Plan for MU dated April 10, 1968 and issued by the Educational Committee of the two Associations. Mr. Lim Fong Seng, the Chairman of the plaintiff company, stated in his evidence that the Proclamation and Plan truthfully reflected the aims and intention of those who wanted to establish MU and that at that meeting a working committee was set up for its establishment according to the aims and intention shown in these two instruments. The invitation to attend that meeting was only through the Chinese press and the intention was to confine it only to the Chinese community. At the meeting no donations were made but there were pledges of financial support from all the people present. Mr. Lim further said that the public response was very good and donations for the plaintiff were received even before it was registered.

 

The plaintiff company was incorporated on May 8, 1969 as a company limited by guarantee under the Companies Act, 1965, its primary object being, as stated in its memorandum of association, “to continue, establish and carry on in the Federation of Malaysia a University for the promotion of learning, arts, science and research, the provision of higher education, and the conferment of degrees.” The plaintiff was unable to proceed further in view of the unfortunate turbulence that started on May 13, 1969, and in the meanwhile the Universities and University Colleges Act, 1971, Act 30 (“the 1971 Act”) was enacted and came into force on April 30, 1971.

 

The Council of the plaintiff at its meeting on April 23, 1977, resolved to adopt the Proclamation and Plan for MU referred to earlier and to submit a petition to the Yang di-Pertuan Agong under section 6 of the 1971 Act for an incorporation order for the establishment of the proposed MU based on the principles and objectives of these two instruments, and it also appointed a drafting committee for this purpose. Mr. Lim testified that although in 1977 Malaysia had five universities as against only one in 1968, there was still a need for another university because opportunities for tertiary education still remained insufficient, in particular, for those who are not Malays.

 

Section 6 of the 1971 Act provides:

 

“6. (1) If, the Yang di-Pertuan Agong is satisfied that it is expedient in the national interest that a University should be established, he may by order —

(a) declare that there shall be established a higher educational institution having the status of a University, which shall be a body corporate, for the purpose of providing, promoting and developing higher education in all such branches of learning as shall be specified in the order;

(b) assign a name and style to that University; and

(c)specify the location of the site which shall be the seat of that University.

(2) An Order made under subsection (1) (hereinafter referred to as the ‘Incorporation Order’) shall, at the next meeting of Parliament, be laid before both Houses of Parliament.”

 

A petition dated January 30, 1978 praying for an incorporation order for MU under section 6 of the 1971 Act was accordingly submitted to His Majesty by the plaintiff and endorsed with the supporting signatures of some 4,238 Chinese guilds and associations throughout the country, and copies were sent to the Prime Minister, the Minister of Education and all members of Parliament. The petition was in three languages — Malay, English and Chinese. The Malay version speaks of Chinese as the medium of instruction with the emphasizing of the teaching of Malay and English, whereas the English version refers to Chinese as a major medium of instruction and also highlighting learning of and training in Malay and English. Datuk Musa bin Hitam, the Deputy Prime Minister and Minister of Home Affairs, Malaysia since July 1981 who was the Minister of Education in 1978 at all times material to these proceedings, said in his evidence that he considered the version in Malay (which is the official language) as the authoritative text, it being an official matter. It is not in dispute that since 1978 in accordance with the provisions of Article 153 of the Federal Constitution bumiputras were granted favoured access to the then established universities in the country. Petition Rejected And Reasons Therefor

 

There was a request by the plaintiff by a letter dated May 4, 1978 for a dialogue with the Minister to clarify matters if necessary or to volunteer further information and exchange ideas, followed by a reminder on September 11, 1978 but with no response to either. The Minister in a speech at the United Malays National Organisation (UMNO”) General Assembly on September 17, 1978 announced the rejection of the plaintiff’s petition and gave the following reasons for it:

 

(a) MU would use Chinese as the medium of instruction;

(b) It was meant to cater for students from Chinese independent secondary schools;

(c) It was to be set up by the private sector;

 

and, as a composite of the basis for rejection, that in effect its establishment would be contrary to the national education policy.

 

The Plaintiff issued a statement on September 22, 1978 as a result of the Minister’s speech, refuting the reasons given for the rejection of its petition and also sought to convene a meeting of Chinese guilds and associations at which, according to Mr. Loot Ting Yee, the Assistant Secretary of the plaintiff and Vice-Chairman of the United Chinese School Teachers’ Association, some 8,000 representatives and observers would have attended, but which however did not materialize for the reasons he gave.

 

In a debate in Parliament on October 10, 1978 on a motion to amend the 1971 Act the Minister explained why the defendant had to reject the application by the private sector to set up MU. The plaintiff wrote to the then Prime Minister on November 11, 1978 complaining of the Minister’s lack of response to its request for a dialogue and his announcement of the rejection of the petition without any such dialogue and requesting one with the Prime Minister; but in a reply thereto on November 20, 1978 the plaintiff was told that as the matter would be debated in Parliament the Prime Minister did not think it desirable to have a dialogue with the sponsors as requested. In a further debate in Parliament on December 11, 1979 on a motion by the leader of the Opposition with regard to the establishment of MU, the Minister went into the reasons he gave at the UMNO General Assembly in September for the rejection of the plaintiff’s petition and explained them at some length, and in dealing with the third reason, that is to say, that it is to be set up by the private sector, he said that the rejection on this ground only applies in the context of MU and does not cover proposals to set up any other private university.

 

The Chief Secretary to the Government by a letter dated January 25, 1979 informed the plaintiff that His Majesty after consideration of the petition submitted had decided to reject its application for the establishment of MU. Relief Sought By Plaintiff

 

The plaintiff as a result issued the writ out of which arises this appeal on September 16, 1980 and claims as relief a declaration that the defendant’s rejection of its petition for the establishment of MU is null and void as it contravenes the Federal Constitution and also a declaration that the refusal of its petition to establish MU is an unreasonable and improper exercise of the discretion conferred by section 6 of the 1971 Act. The plaintiff originally also sought other reliefs which were however abandoned during the course of the hearing.

 

In the result the learned Judge dismissed the plaintiff’s claim for the declaration sought, [1981] 2 MLJ 356.

 

The plaintiff appeals to us. The issue before us is the same as the issue before the learned Judge and that is whether the defendant Government has in the circumstances acted constitutionally, reasonably and fairly.Constitutional Monarch

 

Though the plaintiff’s application was rejected by His Majesty, in fact the decision was that of the Government, because His Majesty is a constitutional monarch and in this regard he was required by Article 40(1) of the Constitution to:

 

“act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet …”

 

That is why the Government has been cited as the defendant.

 

Under section 6 of the 1971 Act before His Majesty may make an incorporation order establishing a university it is a condition precedent that:

 

(1) he has to be satisfied,

(2) that it is expedient,

(3) in the national interest,

(4) that a university should be established.

 

If he is not so satisfied he has no power to make an incorporation order and must reject the application.

 

But even if the condition precedent is met His Majesty has a discretion whether or not to make the order and he has power — but not a duty — to do so; but as a general rule, as the learned Judge stated (page 360) once the condition precedents are fulfilled then the power ought to be exercised unless it is impracticable to do so.

 

The substantial questions for the learned Judge’s consideration are whether or not in the exercise of His Majesty’s power under section 6 of the 1971 Act, he and in effect the Government took into account legally relevant considerations and acted fairly, whether there was misdirection in fact and in law (including the Constitution); whether or not the decision was made on sufficient material and evidence or on extraneous considerations or was so unreasonable that no reasonable person could have come to it.

 

It will be noted that section 6 used the formula “If the Yang di-Pertuan Agong is satisfied etc.” In the past such a subjective formula would have barred the courts from going behind His Majesty’s reasons for his decision to reject the plaintiff’s application; but, as stated by the learned Judge, administrative law has since so far advanced such that today such a subjective formula no longer excludes judicial review if objective facts have to be ascertained before arriving at such satisfaction and the test of unreasonableness is not whether a particular person considers a particular course unreasonable, but whether it could be said that no reasonable person could consider that course reasonable — see the cases cited by the learned Judge at page 360. Mr. Beloff before us accepts this test, but argues that the learned Judge while aware of the correct test misapplied it and that if he had applied it correctly he should have come to the opposite conclusion. Article 152

 

As already stated, the first reason given by the Minister for rejecting the plaintiff’s application for an order to establish MU was because MU would use Chinese as the medium of instruction which would conflict with the national education policy. In evidence the Minister said that the objection was to the use of Chinese as the main medium of instruction and in cross-examination said that even if it were to be a major medium and not the only medium of instruction it would still conflict with the national education policy.

 

Article 152(1) of the Constitution provides that the national language shall be the Malay language now commonly known as bahasa Malaysia or simply bahasa, but this is subject to an important proviso which reads:

 

“Provided that —

(a) no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and

(b) nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.”

 

As regards Mr. Beloff’s argument regarding Article 152, he accepts the position of bahasa as the national and official language. He does not attack the official policy of giving preference to bumiputra admission into university. He does not contend that the plaintiff has a right to establish MU, but accepts that Government has a discretion under the 1971 Act to allow or reject the plaintiff’s petition, but contends vigorously, though not emotionally as another lawyer might have done, that in rejecting the plaintiff’s petition Government has, though in good faith, contravened Article 152.

 

The controversy around this Article is this I Mr. Beloff contends that the Article prohibits the use of Chinese for official purposes, but not for unofficial purposes, that as “official purpose” is defined by clause (6) of Article 152 as meaning—

 

“any purpose of the Government, whether Federal or State, and includes any purpose of a public authority”;

 

and as public authority is defined by Article 160 (2) as follows:

 

“[It] means the Yang di-Pertuan Agong, the Ruler of Yang di-Pertua Negara of a State, the Federal Government, the Government of a State, a local authority, a statutory authority exercising powers vested in it by federal or State law, any court or tribunal other than the Federal Court and High Courts or any officer or authority appointed or acting on behalf of any of those persons, courts, tribunals or authorities”;

 

MU if established would not be a public authority as defined and teaching in Chinese there would not be use for an official purpose, and that therefore it was unconstitutional of the Government to reject the plaintiff’s petition. On the other hand, the learned Attorney argues that MU would be a public authority, that teaching in Chinese there would be using the language for an official purpose and therefore not a right protected by Article 152 and that accordingly the Government was acting within its power to reject the plaintiff’s application.

 

It would seem to us that if the learned Attorney is right, that is that MU if established would be a statutory authority exercising powers vested in it by federal law and therefore a public authority, it would necessarily follow that teaching in Chinese there would be using Chinese for an official purpose, and therefore it is not protected by the bracketed words in proviso (a) of Article 152(1), and that on the contrary it would be prohibited. Should we come to this conclusion then it would appear that that would be the end of the matter, and there would be no need for us to consider any of the other arguments addressed to us by Mr. Beloff in support of this appeal. History Of Language Provisions

 

It will help in determining who is right and who is wrong on the language issue if we set out its history. Before the last war in official circles English was much in use though bahasa was also used particularly at the subordinate level in the old Federated Malay States, that bahasa was used more than English in the other non-Federated Malay States, and that English was used more than bahasa in the two colonies of Penang and Malacca.

 

When these territories were brought together as the Federation of Malaya, the Federation of Malaya Agreement, 1948, the then constitution, had no language provision of general application like Article 152. It had language provisions specifically with regard to three matters. With regard to the first two matters, namely the Federal Executive Council and the Federal Legislative Council, it provided that the official languages of these bodies:

 

“shall be English and Malay:

Provided that anything which is required to be printed or reduced into writing shall be expressed in the English language (see Clauses 35 and 63)”

 

With regard to the third matter, language of the Agreement itself, Clause 156 provided:

 

“This Agreement shall be expressed in both the English and the Malay languages; but, for purposes of interpretation, regard shall be had only to the English version.”

 

Eight years later in 1956–7 when independence was drawing near, a Royal Commission under the chairmanship of Lord Reid was jointly appointed by the British Government and the Rulers to draft our present Constitution. They recommended in paragraphs 170 and 171 that bahasa should be the national as well as the official language, though for a period of at least ten years English should continue to be used as an official language.

 

The two paragraphs 170 and 171 read as follows:

 

“170. We received a large number of representations on this subject. After giving full consideration to them we have decided to recommend (Art. 140) that Malay should be the national language and that for a period of at least ten years English should continue to be used as an official language. There are many citizens of the Federation who have had little opportunity in the past of learning to speak Malay fluently, and we think that it would not be fair to them that Malay should become the sole official language in the immediate future. Moreover we think that it would be impractical to abolish the use of English before 10 years have elapsed. After 10 years it should be left to Parliament to decide when a change should be made and we have framed our recommendations so as to enable Parliament to proceed by stages if it thinks fit to do so. It may be found desirable first to discontinue the use of English for some purposes and then to discontinue its use for other purposes at some later date. We do not recommend that any other language should become an official language. This has not been found necessary in the past and we think that it might lead to great inconvenience. But in the past it has been found desirable that many notices, announcements and other documents should be published in Chinese and Tamil as well as in Malay and English and we think that this will continue to be desirable for some considerable time. Our recommendations will not prevent this being done, but it is impossible to define the circumstances in which it should be done.

171. We have been impressed by representations that the existing law may prevent the election to the legislatures of persons whom the electors may desire to elect, and we recommend two changes: in the first place we think that there should be no language qualification for candidates, we have drafted Article 41 in such a way as to abolish this qualification and prevent its reimposition. Secondly we think that for ten years there should be a limited right to speak in a legislature in a Chinese or Indian language. Our proposal limits this right to those who cannot speak fluently in either Malay or English, and for practical reasons it is necessary to limit the right to cases where a member who can speak the language in question can take the chair and where there can be a record of the speech. We do not recommend the institution of a system of interpretation; it would be cumbrous and expensive and might be difficult to operate. Our recommendation is based on the view that speeches in Chinese or Indian languages should be exceptional and we would not think it right to open the door for the regular use of these languages in debate. There are some purposes, such as the authoritative text of an Act of Parliament and proceedings in Courts of Justice other than taking of evidence, for which it may be found best to retain the English language for a considerable number of years, but we think that it is right that for all ordinary purposes Malay should in due course become the sole official language. Our recommendations are not intended to put obstacles in the way of that transition, but rather to regulate the transition so that it may take place in a manner fair to all communities.”

 

The Reid Report was published for general discussion and debate and after considering the views made known in the Press and elsewhere the Malayan and British Governments made known their decisions which were published in 1957 in a White Paper entitled “Federation of Malaya — Constitutional Proposals.” The Malayan Government then was the coalition known as the Alliance consisting of members of the three major racial parties: UMNO, the Malayan Chinese Association and the Malayan Indian Congress. They too agreed to make bahasa the national as well as the official language, but typically they balanced this decision by protecting the use of other languages for unofficial purposes. The relevant paragraph of the White Paper reads:

 

“61. It is proposed to make three changes in the recommendations of the [Reid] Commission on the subject of the national language. First, it is proposed to provide that no person shall be prohibited or prevented from using (otherwise than for official purposes) or from teaching or learning any language. Secondly, it is proposed that the Federal and State Governments shall have the right to preserve and sustain the use and study of the language of any community in the Federation. Thirdly, it is proposed not to accept the recommendation of the Commission that for a period of ten years there should be a limited right to speak in a Legislature in a Chinese or Indian language.”

 

To give effect to the tri-racial Malayan Government’s decision on this point, Article 152 was accordingly written in its present form except that the original words “the Supreme Court” in Clause (4) now read “the Federal or a High Court”, and secondly Clause (6) was not inserted into the Article until 1971 by the Constitution (Amendment) Act A30.

 

Be it noted that while the Federation of Malaya Agreement, 1948, used the words “official language”, the present Constitution, while making it quite clear that bahasa is the language to be used for official purposes i.e. the official language, at the same time provides that bahasa should be also the national language.

 

It is well known that our constitution is modelled on the Indian constitution, and it is to be further observed that the Indian provisions on language (see Part XVII) use the expressions “official language and “regional languages”, but not “national language”.

 

Why the language difference between the two constitutions?

 

We think it reasonable to suppose that the framers of our Constitution deliberately chose to use the expression “national language” because they intended that bahasa should be used not only for official purposes but also as an instrument for bringing together the diverse and polyglot races that live here and thus promote national unity. Before independence there were separate schools with Malays going to Malay-language schools, Chinese to Chinese-language schools and Indians to Indian-language schools, thus keeping the three major communities apart. The only unifying factors were the comparatively few English-language schools where children of various races were taught a common syllabus in a common tongue and mixed freely and later produced the leaders who were largely instrumental in developing the country economically and politically. We think it reasonable to suppose that the framers of our Constitution who came from this group of Malayans — later Malaysians — concluded that just as before independence the English language could unify the small but highly influential group of leaders, so after independence the use of bahasa could and should be used as an instrument for unifying the whole nation.

 

A few cases were cited to us from the United States of America. We do not think that they are of much help to us, since in our view our constitution must be interpreted in the light of our own history, traditions and in the light of conditions prevailing in Malaysia, which are different from those of the United States. But when considering those authorities, we could not help thinking that the most important factor in welding the Americans who originated from countries in Europe and elsewhere, each with a different language, into one nation, united and proud to be Americans, strong and prosperous, was the use in school and university there of a single language, namely the English language and no other; and that while other languages are taught and learnt, they are so only as foreign languages. Perhaps the Fathers of our Independence too were aware of this and determined to profit from the American experience. Meaning Of Article 152

 

Such was the background to Article 152, but in construing it, reference must be made to the National Language Act, 1963/67, of which the following sections provide:

 

“2. Save as provided in this Act and subject to the safeguards contained in Article 152(1) of the Constitution relating to any other language and the language of any other community in Malaysia the national language shall be used for official purposes.

4. The Yang di-Pertuan Agong may permit the continued use of the English language for such official purposes as may be deemed to be fit.”

 

With regard to section 4, His Majesty has made an order published as P.U. 410 of 1967 permitting the continued use of English for certain official purposes — which does not, however, include university teaching in a language other than bahasa.

 

Reading Article 152 together with the National Language Act, in our judgment, the law may be stated as follows:

 

1. Bahasa is the national language;

2. Bahasa is the official language;

3. A person is prohibited from using any other language for official purposes — subject to exceptions as regards the continued use of the English language allowed by section 4 and of other languages by other provisions of the National Language Act;

4. No person shall be prohibited or prevented from using (to be specific) Chinese for unofficial purposes;

5. No person shall be prohibited or prevented from teaching Chinese;

6. No person shall be prohibited or prevented from learning Chinese;

7. The Federal or a State Government has the right to preserve and sustain the use and study of the language of any non-Malay community — as indeed the Federal Government is doing in school and at the Institute of Technology, Mara, and in the Departments of Chinese and Indian Studies and in some other departments at the University of Malaya where even Arabic, Japanese, Thai and other languages are taught. (This right belongs to Government).

 

Government cannot legally prohibit or prevent MU from teaching and offering courses to enable students to learn Chinese.

 

But the crucial question is: would MU be prohibited from teaching in Chinese as the sole or major medium of instruction? It certainly would if it is a public authority, for then the use of Chinese there would be use for an official purpose which the Constitution read together with the National Language Act says is prohibited. Merdeka University A Public Authority?

 

It is to be observed that the plaintiff did not say that it proposed to teach Chinese and offer courses enabling students to learn Chinese at MU; its memorandum of association said that its primary object was, as earlier stated, “to continue, establish and carry on in the Federation of Malaysia a University for the promotion of learning, arts, science and research, the provision of higher education, and the conferment of degrees”. In other words, MU would be a full-fledged university offering courses which one would expect any other university to offer.

 

Is teaching arts, science, conducting research and providing higher education in Chinese only or in Chinese as a major medium of instruction at MU using that language for official purposes within the meaning of the words within the brackets in proviso (a) to Clause (1) of Article 152 as contended by the learned Attorney-General and so held by the learned trial Judge?

 

It is not contended that MU if established would be Government, but it is contended that it would be a statutory authority exercising powers vested in it by federal law and therefore a public authority within Article 160 (2).

 

With respect, we agree with the learned Judge that MU would be a public authority for the reasons given by him. The operative word in the definition in Article 160(2) must necessarily be the word “authority”, and for a person or body to constitute such an entity there must be some public element and utility in its constitution, operation, functions, powers and duties. Viscount Simon L.C. said at page 178 in Griffiths v Smith [1941] AC 170 with regard to the managers of a non-provided public elementary school that the body of managers are a statutory body created by the relevant statutes for the discharge of public duties and therefore a public authority and are not analogous to companies acting for profit as in Attorney-General v Company of Proprietors of Margate Pier and Harbour [1900] 1 Ch 749. As the learned Judge pointed out, the plaintiff’s petition and memorandum of association make it clear that the plaintiff is a non-profit making corporation and this would equally apply to MU which it is sponsoring.

 

A university established under the 1971 Act even if private clearly has the requisite public element, as it is subject to some degree of public control in its affairs and involves a number of public appointments to office in its framework, acts in the public interest and is eligible for grants-in-aid from public funds. Under section 3 of the 1971 Act the Minister of Education is responsible for the general direction of higher education and the administration of the Act. A university can receive grants-in-aid authorized by Parliament under section 11 and in this connection the Minister of Education has certain supervisory responsibilities. His Majesty and in effect the defendant would be responsible for the establishment of the campus and for making an order for this purpose in accordance with the provisions of section 12 and land may be acquired for the purposes of a university under section 13. The Minister of Education has also certain functions in relation to student activities and discipline under sections 15A and 15D.

 

The Constitution of a university must contain provisions for all matters set out in the schedule to the Act (section 8) and these give wide powers to the administration of the university. The appointment of the Chancellor and Vice-Chancellor is to be made by His Majesty on ministerial advice and after consultation with the Council of the university in the latter case, and of the Deputy Vice-Chancellor by the Minister of Education. Appointments to the Council and Court of the university include those by His Majesty and the Rulers and Governors of the several States and the Council will also include designated Government officers. His Majesty has power to amend the Constitution of a university at any time (section 8(3)) and by order exempt, vary or add to any of the provisions of the schedule to the Act (section 26).

 

It is therefore quite clear that there is a public element in a university.

 

A university is quite distinct from an entity incorporated under the Companies Act.

 

A company incorporated under the Companies Act is not created by that statute and only comes into existence in accordance with its provisions, that is by the Registrar of Companies, on the registration of its memorandum, certifying under subsection (4) of section 16 of the Companies Act No. 79 of 1965 that the company is on and from the date certified in the certificate, incorporated; and may not have any statutory or public duty imposed on it. There is a well-marked distinction between a body created by statute and one which after having come into existence is governed in accordance with the provisions of the statute in question.

 

In our judgment, a university is therefore a statutory authority exercising powers vested in it by federal law and therefore a public authority. In reaching our conclusion we are greatly influenced by the scheme of the 1971 Act which is peculiar to Malaysia in that it prohibits the establishment of a university within its context except in accordance with its provisions (section 5) and that a university when established thereunder is deemed to have been established by section 7(1) thereof.

 

While it is true as stated by the learned Judge, (page 360) following Minister of Home Affairs v Fisher [1980] AC 319, 329, that a Constitution should be construed with less rigidity and more generosity than ordinary law, nevertheless, like the Constitution of Western Nigeria which fell to be considered by the Privy Council in Adegbenro v Akintola [1963] 3 All ER 544, our Constitution, paraphrasing the words of Viscount Radcliffe at page 551 in that case, now stands in its own right; and while it may be useful on occasion to draw on the practice and doctrine of other countries — cases from the United States, Canada, England and India were cited to us — it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other constitutions.

 

Also, our approach to our Constitution should be the same as the approach of the Indian Supreme Court to problems of interpreting the Indian Constitution. On this Fazal Ali J. said at page 774 in Pathumma v State of Kerala AIR 1978 SC 771:

 

“Courts interpret constitutional provisions against the social setting of the country so as to show a complete consciousness and deep awareness of the … requirements of … society, the … needs of the nation, the … problems of the day … It must take into consideration the temper of the times and the living aspirations and feelings of the people.”

 

It is well known that the Reid Commission included Mr. Justice Malik of the Allahabad High Court who was presumably familiar with the Indian Constitution from which many provisions of our Constitution were taken, and when we contrast the language of Articles 29 and 30 of the Indian Constitution which provide as follows:

 

“29 (1) Any section of the citizens … having a distinct language … of its own shall have the right to conserve the same.

30(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

 

and which were omitted from the provisions recommended for inclusion in our Constitution, we cannot help but conclude that the word “using” in proviso (a) to our Article 152 cannot also mean “teaching in” as was contended by Mr. Beloff.

 

Mr. Beloff strenuously argues that the words “a statutory authority exercising powers vested in it by federal … law” in the definition of “public authority” take their colour from the surrounding words by virtue of the maxim noscitur a sociis and that therefore for an authority to be a public authority it must have governmental or quasi-governmental attributes which he submits MU if established would not have. We do not agree for the reasons already given. Furthermore, official purpose as defined by Clause (6) of Article 152 draws a distinction between the purpose of Government on the one hand and on the other the purpose of a public authority which is also included within the definition. The word “include” is clearly used:

 

“in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also these things which the interpretation clause declares that they shall include” per Lord Watson at page 105 in Dilworth v Commissioner of Stamps [1899] AC 99.

 

Thus in our judgment a public authority includes not only a body of a governmental or quasi-governmental nature but indeed any authority with a public element established by statute and exercising powers vested in it by federal law.

 

In our view, the nature and classification of powers are irrelevant. What is important is the source from which the powers come. The definition clearly says:

 

“Public authority means … a statutory authority exercising powers vested in it by federal or State law …”

 

It is clear from the language of the definition that as long as powers exercisable by an authority established by statute are vested in or conferred on it by federal or State law, the statutory authority concerned is a public authority. To accept Mr. Beloff’s submission on this point would render nugatory the word “powers vested in it by federal or State law”. The test is, (a) whether or not an authority is established by federal or State law, and if so (b) whether the powers exercisable by it are vested in it by federal or State law. If the answer to each question is yes, then the situation is a public authority.

 

The fact that the Federal and High Courts are excluded from the definition of public authority does not affect the question before us. It is due to the need to maintain judicial independence, and to make clear that these courts are not part of the Executive. Conclusion

 

In any event, bearing in mind the history of education in this country and the divisive results of allowing separate language schools and the lesson learned from the experience of our neighbour with a private university and the determination of Parliament to so regulate schools and universities and education generally as an instrument for bringing about one nation out of the disparate ethnic elements in our population, we have no choice but to hold, as we have already held, that MU if established would be a public authority within Article 160(2) of the Constitution and that accordingly teaching in Chinese there would be use of that language for an official purposes, which use may be prohibited under Article 152.

 

As there is no right to use the Chinese language for an official purpose, accordingly in our judgment it was not unconstitutional and unlawful of Government to reject the plaintiff’s petition to establish MU.

 

We would therefore dismiss this appeal with costs.

 

Over a period of six days Mr. Beloff addressed to us many other arguments, but in view of our conclusion on the meaning of Article 152 which is decisive of the result of this appeal, we do not think it strictly necessary to deal with them at any length. They were dealt with in detail by the learned trial Judge and we are in complete agreement with his conclusions thereon on the application of the principles of law involved to the facts of the matter before us.

 

Before departing from this case, we would like to remark that it is unfortunate that there is a widespread tendency on the part not only of the Chinese to demand the establishment of this or that institution of learning as part of a campaign to win favour with the electorate. This is especially marked when a general election is looming. An unfortunate effect of this tendency is the need to appeal to racial and linguistic sentiments and the arousing of strong emotions on the part of those whose language is being championed and equally strong reactions on the part of those whose language is thought to be threatened. It is realized that this is a legacy from pre-merdeka days when the different races were educated in separate compartments. Now that we have been in charge of our own destiny for 25 years, our people should be mature enough to realize the importance as regard sensitive issues of keeping the political temperature down rather than up, they should agree to regard universities and schools as an educational rather than a political problem, and that they are a vital instrument in nation-building.

 

Seah J (dissenting)

 

I have the advantage of reading the draft judgment prepared by the learned Lord President in which His Lordship inter alia, held that a university incorporated under the Universities and University Colleges Act 1971 would be a public authority within the definition of Article 160(2) of the Federal Constitution and that using the Chinese language as a medium of instruction in the proposed Merdeka University would be using that language for an official purpose which use may be prohibited under Article 152(1)(a). I have the misfortune to differ from this conclusion and I propose to state without going into much detail the basis of my dissent.

 

The facts giving rise to this appeal have been succintly set out by the learned Lord President in his judgment and I will not repeat them here. Suffice for me to say that, in my opinion, this appeal turns on the proper interpretation to be given to Article 152(1)(a), Article 152(6) and Article 160(2) of the Constitution.

 

Art. 152(1) provides that the national language shall be the Malay language and shall be in such script as Parliament may by law provide:

 

Provided that—

 

(a) no person shall be prohibited or prevented from using (otherwise than for official purposes) or from teaching or learning, any other language.

 

I agree with the view of the learned Lord President that the undermentioned construction be given to Article 152(1)(a), namely—

 

1) Bahasa Malaysia is the national language;

2) Bahasa Malaysia is the official language;

3) A person is prohibited or prevented from using any other language for official purposes (section 2 National Language Act);

4) No person shall be prohibited or prevented from using the Chinese language for non-official purposes; and

5) No person shall be prohibited or prevented from teaching or learning the Chinese language.

 

In the light of these interpretations I also agree with the view of the learned Lord President that Government cannot legally prohibit or prevent Merdeka University from teaching Chinese and offering courses to enable students to learn Chinese. The above interpretations do not appear to support the view of the learned trial judge that “using” should be confined to use as a medium of expression or communication within the language of ethnic groups concerned. In my opinion, “using” does not mean “speaking” and it would be wrong to give such a narrow and artificial construction to the word “using” when the only restriction imposed by Article 152(1) (a) is limited to using any other language or the Chinese language for official purposes only. In short, Bahasa Malaysia must only be used for official purposes. There is nothing in Article 152(1)(a) to prohibit or prevent the using of the Chinese language for non-official purposes, and it is within the legitimate right of a businessman to put up his business signboard in the Chinese language as well as in the national language. In my opinion, this constitutional privilege guaranteed by Article 152(1)(a) should be given a liberal interpretation and no attempt should be made to whittle it down.

 

In Article 152(6) “official purpose” means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority.

 

Article 160(2) provides that “In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

 

“Public authority” means the Yang di-Pertuan Agong, the Rulers or Yang di-Pertua Negeri of a State, the Federal Government, the Government of a State, a local authority, a statutory authority exercising powers vested in it by Federal or State law, any court or tribunal other than the Federal Court and the High Courts, or any officer or authority appointed by or acting on behalf of any of those persons, courts, tribunals or authorities.

 

In the context of this appeal I will only concern myself with that part of the interpretation clause where “a public authority” means “a statutory authority exercising powers vested in it by Federal law, viz. Universities and University Colleges Act 1971”.

 

According to the view of the learned Lord President the operative word in the definition in Article 160(2) of the phrase “a public authority” must necessarily be the word “authority”. With the greatest respect, I do not agree with this view inasmuch as not every statutory authority would be a public authority; only a statutory authority exercising powers vested in it by Federal or State law would come within the definition of a public authority. In my opinion, the operative word is “powers” and not “authority”.

 

Now, there are two forms of interpretation clause. In one, where the word defined is declared to “mean” so and so, the definition is explanatory and prima facie restrictive. In the other, where the word defined is declared to “include” so and so, the definition is extensive. Here, “public authority” means so and so and the word “include” is not used in the definition in Article 160(2).

 

It is a general rule of construction that where a particular class is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class (per Pollock C.B. in Lyndon v Standbridge(1857) 2 H & N 45, 51; 157 ER 19, 22). And in Queen v Edmundson (1858) 28 LJMC 213, 215; 121 ER 30, 33 Lord Campbell C.J. said:

 

“The general principle laid down in all the cases which have been cited is that, where particular words are followed by general words, the latter must be construed as ejusdem generis with the former”.

 

Applying this canon of construction here, in my opinion, the word “powers” should be confined to governmental or quasi-governmental powers. In other words, only a statutory authority exercising governmental or quasi-governmental powers vested in it by Federal or State law would be held to be a public authority within the meaning of a public authority defined in Article 160(2).

 

The powers of a university incorporated under the Universities and University Colleges Act 1971 are clearly stated in Reg. 4(1) of the Constitution in the Schedule to the Act. The nature of these powers may be summarised as follows:

 

(a) to provide courses of instructions, to hold examinations, to make provision for research and to take such steps as may appear necessary or desirable for the advancement and dissemination of knowledge;

(b) to confer degrees upon persons who have followed approved courses of studies and have satisfied the university requirements;

(c) to recognise degrees of other institutions of higher learning;

(d) to confer degrees upon teachers of the university;

(e) to confer honorary degrees on distinguished persons;

(f) to grant certificates;

(g) to institute lectureships, etc.;

(h) to set up a university printing press, etc.;

(i) to maintain libraries and other buildings required for the purposes of the university;

(j) to confer Fellowships, scholarships, etc.;

(k) to invest in land or securities, etc.;

(l) to enter into contracts, etc.;

(m) to appoint teaching staff, etc.;

(n) to regulate the conditions of service of the teaching staff;

(o) to establish pension or provident fund;

(p) to build houses for the teaching staff;

(q) to demand and receive fees, etc.;

(r) to do all such acts and things in order to further instruction, research, finance, administration, welfare and discipline in the university.

 

A perusal of these powers in Reg. 4(1) of the constitution of a university established under the 1971 Act shows plainly that they are not what we may term governmental or quasi-governmental powers but general administrative powers, duties, functions and jurisdictions conferred or imposed on the university by the 1971 Act. These powers are concerned with the internal organisation and management of a modern university.

 

Since a university incorporated under the Universities and University Colleges Act 1971 would not be exercising governmental or quasi-governmental powers vested in it by Federal law it follows that such a university would not be a public authority. In my opinion, the proposed Merdeka University if established under the 1971 Act would not be a public authority within the meaning of the definition in Article 160(2) of the Constitution of Malaysia, the proposed use of the Chinese language as a medium of instruction in the said university would not be use for an official purpose and such use would not be unconstitutional but is expressly protected and guaranteed by Article 152(1) (a) of the Federal Constitution.

 

In holding that the word “powers” should be confined to governmental or quasi-governmental powers vested in it by the Universities and Uni-university Colleges Act 1971 I am much influenced by the fact that both the Federal Court and the High Courts in Malaya and Borneo are expressly excluded from the definition of a public authority in Article 160(2). Like the Federal and the High Courts, a university incorporated under the 1971 Act, being an institution of higher learning, should not, in my opinion, be an instrumentality of the government and this particularly so when the Constitution of Malaysia is modelled on the Wesminster-type based on parliamentary democracy. Although such a university would not be a public authority I am of the view that such an institution of higher learning would still be subject to Art. 153 of the Constitution inasmuch as Article 153(8A) provides that:

 

Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang-di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable; and the authority shall duly comply with the directions.”

 

Reference has been made to the case ofGriffiths v Smith [1941] AC 170. This case and many others like it are dealing with the Public Authorities Protection Act 1893 where section 1 reads:

 

“Where … any action, prosecution or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect:

(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within six months next after the ceasing thereof;”

 

Lord Porter said at p. 205:

 

“The wording of the section is in very general terms, but certain limitations have been placed upon the width of its interpretation by decisions, one at least of which is binding upon your Lordships’ House. (Lord Porter was referring apparently to the case of Bradford Corporation v Myers [1916] 1 AC 242). In the first place, though the word ‘person’ is used, not every person is protected. It is a ‘Public Authorities Protection Act’ and not a ‘persons protection act’ and therefore the body to be protected must be a public authority.”

 

On the other hand, the phrase “public authority” has been statutorily defined in Article 160(2) of the Federal Constitution and I recall the caution of Viscount Radcliffe inAdegbenro v Aktintola [1963] 3 All ER 544 when in dealing with the Constitution of Western Nigeria His Lordship said at p. 550:

 

“— Whereas the Constitution of Western Nigeria is now contained in a written instrument in which it has been sought to formulate with precision the powers and duties of the various agencies that it holds in balance. That instrument now stands in its own right; and, while it may well be useful on-occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origin can be traced … it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by the extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution.”

 

There are two other matters I like to comment upon which do not appear to have been specifically dealt with by the judgment of the learned Lord President. They concern the siting of the proposed Merdeka University and the fund factor. As regards the former section 6(1) of the Universities and University Colleges Act 1971 provides that if the Yang di-Pertuan Agong is satisfied that it is expedient in the national interest that a university should be established, he may by order … (c) specify the location of the site which shall be the seat of that university. And in dealing with the fund factor, Y.A.B. Dato’ Musa bin Hitam, the Deputy Prime Minister who was the Minister of Education at the material time said at p. 149 of the record of proceedings:

 

“Agree a waste of time to discuss details of financial matters in view of stand on linguistic ground.

“If in any application for university, all other considerations favourable and only question was finance available, I would have talked to the sponsors.”

 

When considering these two matters it is pertinent to refer to the provision of section 23 of the 1971 Act which reads:

 

“23(1) No person shall establish, form or promote or do anything or carry on any activities for the purpose of establishing or forming or promoting the establishment or formation of a University or University College otherwise than in accordance with the provisions of this Act.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall on conviction be liable to a fine of ten thousand dollars or to imprisonment for a term of five years or to both.”

 

It seems plain from the testimony of the Deputy Prime Minister that if all considerations were favourable for the establishment of the proposed Merdeka University, he would have a meeting with the sponsors to discuss about availability of finance to maintain the said university. It is also logical to infer from this testimony that the Deputy Prime Minister would also discuss where the proposed university would be sited in view of section 6(1) of the 1971 Act.

 

I think it is not out of place to state that the activities of modern universities embrace a wider scope than mere teaching. When sufficiently financed, research and experimental work of great value to the public and nation is constantly being carried out by them. As a part of the work, scientific treatises of high practical worth are put forth which contribute substantially to state and national progress along industrial, economic and cultural lines. Indeed, the potentialities of service which may be rendered through these agencies cannot be compassed by any small measure. The knowledge diffused by these institutions of higher learning radiates far beyond the student body.

 

In the result I would have allowed the appeal with costs.

 

Appeal dismissed with costs; certificate for two counsel; deposit to respondent against taxed costs.

Categories: CaseLaws

Re Mohamad Said Nabi Decd [1965] 1 MLJ 121:

Categories: CaseLaws

Mohamaed Habibullah Mahmood v Faridah Dato Talib [1992] 2 MLJ 793:

MOHD. HABIBULLAH MAHMOOD v. FARIDAH BT. DATO TALIB
SUPREME COURT, KUALA LUMPUR
TAN SRI DATO‘ HARUN BIN MAHMUD HASHIM TAN SRI DATO‘ HJ. MOHD AZMI BIN DATO‘ HJ. KAMARUDDIN TAN SRI DATUK GUNN CHIT TUAN SCJJ
[SUPREME COURT CIVIL APPEAL NO. 02-441-89]
15 DECEMBER 1992

 

Perintah injunksi interim dibubarkan.

 

JUDGMENT

Harun Bin Mahmud Hashim SCJ:

This was an application in the High Court to set aside an ex-parte interim injunction and another application to strike out the plaintiff’s writ and statement of claim. Both applications were heard together when the Court’s jurisdiction was challenged. The learned Judge determined that the following questions were before the Court:

(a) whether the Court has jurisdiction to adjudicate on the plaintiff’s action since it involves a matter which falls exclusively within the jurisdiction of the Syariah Court; and (b) whether the plaintiff could institute the present action against the defendant when s. 9(2) of the Married Women Ordinance 1957 prohibited a wife from suing her husband in tort.

In the event the learned Judge held that he had jurisdiction and that s. 9(2) of the Married Women Ordinance did not apply. The defendant appeals against these rulings. The applications proper have yet to be heard on the merits.

The plaintiff and defendant are Muslims. They were married on 5 August 1965 at Batu Pahat in the State of Johor which marriage was registered by the Jabatan Agama Johor on 9 August 1965 . On 3 March 1989 the plaintiff (wife) petitioned for divorce in the Syariah Court of Kuala Lumpur. The hearing of the divorce petition was pending at the material time.

The plaintiff alleges that during the course of her marriage she was battered by her husband on numerous occasions. On 14 February 1989 she filed a Writ of Summons in the High Court at Kuala Lumpur and claimed the following reliefs:

(i) damages and/or aggravated damages for acts of assault and battery committed by the defendant against the plaintiff and the members of their family. (ii) an injunction to restrain the defendant by himself, his servant, agent or otherwise howsoever from assaulting, harassing, molesting or interfering, calling and harassing by telephone calls, coming to the plaintiff’s compound at any time of the day with the intention of seeing the plaintiff, approaching the plaintiff or trying to see the plaintiff or talk to the plaintiff, abusing or insulting the plaintiff by word or action in any manner, way-laying the plaintiff at any place and using physical force on the plaintiff, interfering or harassing or in any manner disturb any person or persons, relatives and friends safeguarding the plaintiff’s safety; and until further order; (iii) costs of this action; and (iv) further and/or any other relief as this Honourable Court deems fit to award.

At the same time she filed an ex-parte summons-inchambers praying for a temporary injunction to restrain the defendant from inter alia assaulting, harassing or molesting her and members of her family. On 15 February 1989 when the ex-parte summons came on for hearing, the defendant appeared and gave an oral undertaking that he would not assault, harass or molest the plaintiff. The learned Judge therefore made no order and adjourned the matter sine die. However, on 12 April 1989, the solicitor for the plaintiff filed an affidavit complaining that the defendant continued to harass the plaintiff and requested the Court to restore the plaintiff’s application for an interim injunction which application the learned Judge granted ex-parte on 11 April 1989 with liberty to the defendant to set it aside.

On 21 April 1989 the plaintiff filed her statement of claim. On 28 April 1989 the defendant filed a notice of motion to set aside the temporary injunction. On 12 May 1989 the defendant took out a summons-inchambers to strike out the plaintiff’s writ and statement of claim under O. 18 r. 19(1) of the Rules of the High Court 1980. Both applications eventually came on for hearing on 30 August 1989.

Article 121 of the Federal Constitution states:

(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely –

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and (b) one in the Borneo States, which shall be known as the High Court in Borneo and shall have its principal registry at such place in the Borneo States as the Yang di- Pertuan Agong may determine;

and such inferior Courts as may be provided by federal law; and the High Courts and inferior Courts shall have such jurisdiction and powers as may be conferred by or under Federal law.

But Article 121(1A) which came into effect on 10 June 1988 provides:

The Courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

Section 23(1) of the Courts of Judicature Act 1964 confers general jurisdiction on the High Court to try all civil proceedings. It follows that the High Court has jurisdiction to try an action in tort claiming damages for assault and battery, and consequently to grant an injunction to restrain the defendant from assaulting, harassing, molesting the plaintiff.

The first question then is whether on the facts of this case the Syariah Court has jurisdiction so as to oust the jurisdiction of the High Court under Article 121(1A).

In deciding that he had jurisdiction, the learned Judge said:

Since the plaintiff here is seeking for redress against an actionable wrong committed against her person it cannot therefore be said that the actionable wrong complained of fall exclusively within the jurisdiction of the Syariah Court when the legislature of a State has no power to enact law relating to such matter. Furthermore a cursory glance at the Selangor Administration of Muslim Law Enactment 1952 is sufficient to convince me that such an actionable wrong as pleaded by the plaintiff is not within the jurisdiction of the Syariah Court – see s. 45(3) of the Enactment. Likewise such an actionable wrong is also excluded from the Selangor Islamic Family Law Enactment 1984.

For the above reasons I have no hesitation, on the authority of Ali Mat v. Jamaliah [1974] 1 MLJ 18, in holding that this Court has jurisdiction to entertain the action of the plaintiff.

It is obvious that the intention of Parliament by Article 121(1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court: Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam & Anor. [1992] 1 MLJ @ 7 SC . I am therefore of the opinion that when there is a challenge to jurisdiction (as here) the correct approach is to first see whether the Syariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferring jurisdiction on the Syariah Court. The validity of a State Law can only be questioned in a separate proceeding under Article 4(3) of the Federal Constitution (which in so far as it is relevant) provides:

The validity of any law made by … the Legislature of any State shall not be questioned on the ground that it makes provision with respect to any matter to which … the Legislature of the State has no power to make laws, except in proceedings for a declaration that the law is invalid on that ground

(Emphasis added)

And by Article 4(4) read with Article 128, only the Supreme Court may declare any such law invalid in the proceedings referred to in Article 4(3).

In the present case s. 45(3) of the Selangor Administration of Muslim Law Enactment 1952 referred to by the learned Judge states:

The Court of the Kathi Besar shall –

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under this Enactment, and may impose any punishment therefor provided; (b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties profess the Muslim religion and which relate to –

(i) betrothal, marriage, divorce, nullity of marriage, or judicial separation, (ii) any disposition of, or claim to, property arising out of any of the matters set out in sub-paragraph (i) of this paragraph, (iii) maintenance of dependants, legitimacy, guardianship or custody of infants, (iv) division of, or claims to, sapencharian property.

The Selangor 1952 Enactment (which applied to Kuala Lumpur before it became a Federal Territory) has since been replaced by the Selangor Administration of Islamic Law Enactment 1989 with effect from 14 September 1989 but parts of it continue to apply to Kuala Lumpur whilst other parts of the 1952 Enactment have been superseded by the Islamic Family Law (Federal Territory) Act 1984. The jurisdiction of the Kuala Lumpur Syariah Court in this appeal is conferred by s. 45(3) of the 1952 Enactment.

Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965 provides –

The Syariah Courts duly constituted under any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred jurisdiction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law.

Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.

The Islamic Family Law (Federal Territory) Act 1984 provides:

Injunction against molestation

Section 107(1) The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of an order of divorce, fasakh, or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation. (2) Failure to comply with an order made under this section shall be punishable as a contempt of Court.

Ill-treatment of wife

Section 127. Any person who ill-treats his wife or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

Failure to give proper justice to wife

Section 128. Any person who fails to give proper justice to his wife according to Hukum Syara’ commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

It is true that the Syariah Court has not been conferred with jurisdiction, exclusive or otherwise, to try an actionable wrong committed against the person as set out by the learned Judge but the parties in the instant case are Muslims, they are husband and wife and the allegations of assault and battery occurred during marriage. A divorce petition is pending. The acts complained of by the plaintiff fall within s. 127 of the Islamic Family Law Act and the Syariah Court has power to grant an injunction as claimed by the plaintiff under s. 107 of that Act. There cannot be any doubt that the Syariah Court has been conferred with jurisdiction in respect of matters before the High Court in the present case.

With respect, I think that the learned Judge in arriving at his decision fell into the error of isolating and treating the allegations of assault and battery as an actionable wrong simpliciter (which is clearly within the jurisdiction of the High Court) without regard to the fact that this is a matter for Islamic Family Law within the jurisdiction of the Syariah Court. It seems to me that the learned Judge was under the impression that if the High Court did not give a remedy the wife would not have any remedy.

In Ali Mat Khamis v. Jamaliah Kassim [1974] 1 MLJ 18, the question was whether a matter involving harta sapencharian should be heard in the Court of the Kathi Besar or the High Court. There, the Negeri Sembilan Administration of Muslim Law Enactment 1960 provides in s. 41(3)(b)(iv) that the Court of the Kathi Besar shall in its civil jurisdiction, hear and determine all actions and proceedings in which all parties profess the Muslim Religion and which relate to division inter vivos of sapencharian property. The learned Judge in that case held:

… short of specific words to that effect, the above provision of the Negeri Sembilan enactment was not intended to take away the jurisdiction in civil matters given to a High Court by s. 23 of the Courts of Judicature Act 1964 (Act 91) .

That case was decided in 1973. I am of the view that if such a question is to be decided today, the answer would be that the jurisdiction of the High Court has indeed been taken away by Article 121(1A) of the Constitution. During the course of argument we were referred to the Penang case of Shahamin Faizul Kung Abdullah v. Asma Hj. Junus [1991] 3 CLJ 723 which was concerned with the custody of a male child six years of age. The father of the child (whose mother had died) claimed custody of the child who was in the care of the child’s maternal grandmother. The parties are Muslims and a preliminary objection was taken that the High Court had no jurisdiction by virtue of Article 121(1A) of the Constitution as the jurisdiction had been conferred on the Court of the Kathi Besar by the Penang Administration of Muslim Law Enactment 1959 which by s. 40(3)(b) provided:

(3) the Court of the Kathi Besar shall –

(b) in its civil jurisdiction, hear and determine actions and proceedings in which all the parties profess the Muslim Religion and which relate to:

(iii) maintenance of dependants, legitimacy, guardianship or custody of infants

At p. 2225 the learned Judge in that case said:

The Courts of Judicature Act , except for s. 5 came into force on 16 March 1964. Section 5 came into force on 16 September 1964. But Article 121(1A), as I have already noted, came into force only as recently as 10 June 1988 by virtue of Act A704. In other words, it was not in force at the date of the commencement of the Courts of Judicature Act. Therefore, by virtue of s. 4 of the Courts of Judicature Act , ss. 23 and 24 thereof would, in my opinion, still prevail to confer jurisdiction on this Court to hear the present application. It would have been otherwise if Article 121(1A) had been enacted with retrospective effect so as to have been in force at the date of commencement of the Court of Judicature Act .

After making reference to Article 4(1) of the Constitution which provides:

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

and the interpretation of that Article in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67, the learned Judge concluded:

Section 4 of the Courts of Judicature Act , in my view, is a provision affecting the Constitution because its effect is to render ineffective amendments to the Constitution pertaining to the jurisdiction of the High Courts made after the date of its commencement unless made with retrospective effect.

In short, what the learned Judge there says is that the Constitutional amendment resulting in Article 121(1A) has not achieved the desired objective of Parliament in taking away the jurisdiction of the High Courts where the Syariah Courts have been conferred with jurisdiction in any matter because of the effect of s. 4 of the Courts of Judicature Act . That section provides:

Provision to prevent Conflict of laws

In the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail.

The Courts of Judicature Act 1964 repealed and replaced in part, the Courts Ordinance 1948 which consolidated the law relating to the constitution and powers of the Civil and Criminal Courts, viz. the Supreme Court (consisting of the Court of Appeal and the High Court), the Sessions Courts, the Magistrates’ Courts and the Penghulu’s Courts. The 1964 Act separated the Superior Courts from the Subordinate Courts and makes provisions for the High Court and the Supreme Court. The remaining parts of the 1948 Ordinance is now the Subordinate Courts Act 1948 and provides for the Sessions Courts, the Magistrates’ Courts and the Penghulu’s Courts.

Section 109 of the 1948 Ordinance which applied to all Courts until 1964 provided:

Provision to prevent Conflict of laws

In the event of inconsistency or conflict between the provisions of this Ordinance and the provisions of any written law in force at the commencement of this Ordinance, the provisions of this Ordinance shall prevail.

This provision is retained in the present Subordinate Courts Act(s. 109) as follows:

Provision to prevent Conflict of laws

In the event of inconsistency or conflict between this Act and any other written law in force at the commencement of this Act, the provisions of this Act shall prevail.

Section 4 of the Courts of Judicature Act is actually a reproduction or continuation of s. 109 of the 1948 Ordinance with the addition of the words:

other than the Constitution

It will be observed that although the 1948 Ordinance was revised in 1972 and retitled the Subordinate Courts Act 1948 no change was made to s. 109 even though s. 4 of the Courts of Judicature Act had been in existence in 1964. I do not, however, think that this distinction makes any difference to the effect of s. 4 of the Courts of Judicature Act . The intention of Parliament in adding the words “other than the Constitution” in that section is to exclude the Constitution since the Constitution is the Supreme Law of the land under Article 4(1). I do not, therefore, see how s. 4 of the Courts of Judicature Act can render the constitutional amendment ineffective. For that matter, no Act of Parliament however precisely worded can nullify a provision of the Constitution. I accordingly hold that the words

in force at the commencement of this Act

do not refer to the Constitution but to laws made before 1 January 1949.

In stating that s. 4 is a provision affecting the Constitution, the learned Judge referred to a passage in Phang Chin Hock’s case at p. 72 which said:

In our judgment, in construing Article 4(1) and Article 159, the rule of harmonious construction requires us to give effect to both provisions and to hold and we accordingly hold that Acts made by Parliament, complying with the conditions set out in Article 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way. It is federal law of the latter category that is meant by law in Article 4(1); only such law must be consistent with the Constitution.

With respect to the learned Judge, I hold that the Courts of Judicature Act is a federal law of the latter category. Acts of Parliament which are inconsistent with the Constitution and therefore Acts affecting the Constitution referred to in that passage are Acts enacted under the special provisions of Article 159. The Courts of Judicature Act is enacted under Article 121(1). It follows that the Courts of Judicature Act is not an Act affecting the Constitution and in my opinion there is no necessity to make Article 121(1A) retrospective in effect in order to nullify the effect of s. 4 of the Courts of Judicature Act as construed by the learned Judge.

Taking an objective view of the Constitution, it is obvious from the very beginning that the makers of the Constitution clearly intended that the Muslims of this country shall be governed by Islamic Family Law as evident from the Ninth Schedule to the Constitution: see Item 1 of the State List:

Muslim Law and personal and family law of persons professing the Muslim religion … the constitution, organisation and procedure of Muslim Courts … the determination of matters of

Muslim Law and doctrine and Malay custom.

Indeed that Muslims in this country are governed by Islamic personal and family laws has been in existence with the coming of Islam to this country in the 15th Century. Such laws have been administered not only by the Syariah Courts but also by the Civil Courts. What Article 121(1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic Laws. In other words, Article 121(1A) is a provision to prevent conflicting jurisdictions between the Civil Courts and the Syariah Courts.

Mr. Sidhu also raised the point that the plaintiff had by a Statutory Declaration affirmed on 12 April 1989 renounced Islam and therefore the Syariah Court ceased to exercise jurisdiction over her. This aspect of the matter was brought to the attention of the Kathi of Petaling Jaya who reported on 10 May 1989 to the Director of the Jabatan Agama Islam Selangor that the plaintiff had retracted her renunciation of Islam before him. As such she is still a Muslim and Mr. Sidhu’s argument fails.

The second question here which was pleaded as an alternative to the first question, is the effect of s. 9(2) of the Married Women Ordinance 1957 which provides:

Remedies of married women for protection and security of separate property

Except for the protection or security of his or her property no husband or wife shall be entitled to sue the other for a tort.

The learned Judge held that this section did not apply

as the plaintiff’s action is grounded on criminal offences committed or threatened to be committed against her.

The rule that a married couple cannot sue each other in tort is derived from the Common Law of England where it was held that marital status made the husband and wife one person in the eye of the law and therefore a suit by one against the other is like suing oneself. This common law rule has since been removed by the (UK) Law Reform (Husband and Wife) Act 1962 and each of the parties to a marriage has the same right of action in tort against the other as if they were not married. But our law still stands.

“Tort” is an injury or wrong committed with or without force to the person or property of another.

Section 10 of the Civil Law Act 1956 provides:

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not).

(4) Nothing in this section shall – (a) affect any criminal proceedings against any person in respect of any wrongful act;

The cause of action in the present case is clearly a tort. If the allegations of assault and battery can be proved, this may be the subject of criminal proceedings against the defendant but this fact stands independently from an action in tort. As the plaintiff and defendant are husband and wife and the allegations of assault and battery constituting the tort are not related to the protection or security of property, the plaintiff is barred by s. 9(2) of the Married Women Ordinance from suing the defendant. Section 9(2) therefore applies and the High Court is in error in deciding that it did not.

For the reasons stated, I hold that on the facts of this case, the High Court has no jurisdiction to adjudicate on the plaintiff’s claim for damages for assault and battery against her husband and to the grant of an injunction arising therefrom. I would allow the appeal with costs here and below. The rulings of the learned Judge are reversed. The order of interim injunction is dissolved and the application to strike out the writ and statement of claim be allowed.

Deposit to be refunded to the appellant.

Hj Mohd Azmi SCJ: The crucial issue of jurisdiction in this appeal arises on an application by the appellant to set aside an ex-parte interlocutory injunction granted to his wife (the respondent) on 13 February 1989 and on another application by him to strike out her statement of claim under O. 18 r. 19, RHC 1980. It is not in dispute that after applying for dissolution of her marriage in the Kuala Lumpur Syariah Court under the Islamic Family Law (Federal Territory) Act 1984, and whilst waiting for a date of hearing to be fixed, the respondent (hereinafter referred to as “Faridah“) has taken another course of action by filing a writ action in the Kuala Lumpur High Court against the appellant (hereinafter referred to as “Habibullah”) in which she is claiming for damages and injunction for acts of assault and battery allegedly committed by Habibullah against her. It is the argument of Counsel for Habibullah, both here and in the court below that the High Court has no jurisdiction to hear Faridah‘s claim, nor issue the interlocutory injunction because both parties to the proceedings are Muslims, and the proceedings relate to Islamic Family Law, and as such only the Syariah Court has jurisdiction to hear the claim by virtue of the new clause (1A) of Article 121 of the Federal Constitution. Alternatively, it is also contended that Faridah‘s claim against her husband in tort is prohibited by s. 9(2) of the Married Act 1957 .

In both applications to strike out and to set aside the ex-parte injunction, the legal argument was heard jointly by the learned Judge as preliminary points of law by way of objection to the jurisdiction of the High Court. The two issues are as follows:

(1) Whether the High Court has jurisdiction to adjudicate on Faridah‘s action since it involves a matter which falls exclusively within the jurisdiction of the Syariah Court, and (2) whether Faridah can institute the present action against Habibullah when s. 9(2) of the Married Women Act 1957 prohibits a wife from suing her husband in tort.

The learned Judge dismissed the objection and ordered the Senior Assistant Registrar to fix a date for the hearing of both applications on the merits. The sealed order of the High Court dated 14 October 1989 reads:

IT IS HEREBY ORDERED that this Honourable Court has jurisdiction to deal with the plaintiff’s action, and IT IS FURTHER ORDERED that s. 9(2) of the Married Women Ordinance 1957 is not applicable AND IT IS LASTLY ORDERED that leave to appeal is granted.

Dealing with the constitutional argument first, the amended clause (1) of Article 121 provides that there shall be two High Courts of co-ordinate jurisdiction and status, namely the High Court in Malaya and the High Court in Borneo. This is followed by a new clause (1A) which was inserted by s. 8(c) of the Constitution (Amdt.) Act 1988 (Act A704) with effect from 10 June 1988 in the following terms:

The courts referred to in clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

(Emphasis supplied)

The learned Judge construed Article 121 clause (1A) as a provision which excludes the jurisdiction of the High Court of any matter falling within the jurisdiction of the Syariah Court. At p. 4 of his judgment he states:

In considering the constitutional issue, it is necessary to examine whether the action of the plaintiff falls within the jurisdiction of the Syariah Court. If it does then by virtue of s. 8(c) of the Constitution (Amdt.) Act 1988, this court ‘shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Court’. In this connection it is important to identify the cause of action of the plaintiff from the statement of claim.

Thus, the learned Judge construed clause (1A) correctly and he certainly appreciated the importance of identifying Faridah‘s cause of action in the statement of claim. If it falls within the jurisdiction of the Syariah Court, then that court has exclusive jurisdiction. It should be noted that in civil matters, apart from general jurisdiction under s. 23 of the Courts of Judicature Act 1964 , a Judge sitting in the High Court, can exercise a variety of specific jurisdiction under s. 24 . Depending on the nature of the case before him the Judge may for instance be sitting as a Bankruptcy Judge, a Probate Judge, or a Family Court Judge exercising jurisdiction in divorce and matrimonial causes, guardianship of infants and so on.

In Beard v. Beard [1946] P. 8, although the English Court of Appeal was dealing with the doctrine of condonation – in relation to fresh matrimonial wrong or misconduct, Scott LJ at p. 11 discussed the meaning of the term “matrimonial offence”, thus,

It is said by the one side that “matrimonial offence” means only such a breach of matrimonial duty as will entitle and, perhaps, require the Divorce Court to grant a decree to the aggrieved spouse, and that no degree of matrimonial breach of duty, short of what calls for such a decree, can constitute a “matrimonial offence” within the meaning of the decisions. Their argument is based on the contention that the word “offence” correctly construed carries their meaning. The other side reply that the word “offence” has no statutory force, and is merely a word used compendiously in the cases to cover any matrimonial wrongdoing, whether any decree could or could not be based on the particular wrongdoing in fact established. The dispute has thus seemed to turn on a problem of interpreting a judicial phrase. I think the boarder viewpoint is the sounder and that it would be fallacious to limit the argument of principle of any such verbal and restrictive interpretation of a convenient judicial phrase.

From the statement of claim and ex-parte summons for interlocutory injunction, the present dispute is clearly between a Muslim married couple where the wife’s petition for dissolution of marriage is still pending in the Syariah Court. The subsequent claim in the High Court for damages and injunction are based on alleged acts of assault and battery by the husband arising from or connected with the petition for dissolution of marriage in the Syariah Court. It is pertinent to refer to the basis of Faridah‘s claim for damages and injunction under para 4 which alleges:

4.During the course of marriage between the plaintiff and the defendant, the defendant had battered the plaintiff on numerous occasions.

(Emphasis supplied)

Thus, the root of her complaint relates to the conduct of Habibullah as a husband during the course of a Muslim marriage. It is not really a civil or criminal matter simpliciter as suggested by the trial Judge. In fact and in law the alleged assault and battery constitute matrimonial offence or misconduct by Habibullah which may entitle Faridah to a dissolution of her marriage under Muslim law as enacted in the Islamic Family Law (Federal Territory) Act 1984. Under s. 52(1)(h)(i) of the Act, a woman married in accordance with Hukum Syara’ shall be entitled to obtain an order for the dissolution of marriage or fasakh if the husband treats her with cruelty, that is to say inter alia, habitually assaults her or makes her life miserable by cruelty of conduct. Since the complaint relates to marriage, the matter should if at all be dealt with by the Court in its matrimonial and not in its general civil jurisdiction.

In support of her application in the High Court for interlocutory injunction, Faridah admitted in para eight of her affidavit dated 11 February 1989 that her application was made after she had filed divorce papers in the Syariah Court and was then waiting for a hearing date. Once the parties have submitted themselves to the jurisdiction of the Syariah Court, and once the Syariah Court has taken cognisance of the matrimonial cause on the ground of the husband’s misconduct, it would in my view be an abuse of process under para (d) of O. 18 r. 19 of RHC 1980 for Faridah to go to the High Court and complain over the same misconduct. Lord Diplock in Hunter v. Chief Constable of the West Midlands Police & Ors. [1982] AC 529 at 536 had this to say:

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

Applying the above principle, it is difficult to imagine how the administration of justice can be served if the parties are allowed to abuse the process of the Court by hopping from one jurisdiction to another over the same subject matter. There is no suggestion by anyone both here and in the court below that the High Court has the jurisdiction to alter the matrimonial status of Faridah either by divorce or dissolution of her Muslim marriage under s. 24 of the Courts of Judicature Act 1964 . If not for anything else the application under O. 18 r. 19 ought to have been allowed forthwith on the ground of prejudice and unfairness to Habibullah in the proceedings pending against him in the Syariah Court.

In England, the jurisdiction of, and the law applied by the Probate, Divorce and Admiralty Division, sitting in divorce is purely statutory, but by the combined effect of s. 6 of the Matrimonial Causes Act 1857, of the Judicature Acts and of s. 21 of the Supreme Court of Judicature (Consolidation) Act 1925, the whole of the matrimonial jurisdiction of the ecclesiastical courts is now vested in it (see judgment of Scott, LJ in Beard v. Beard at p. 12). In this country as far as Islamic Family Law is concerned, the reverse appears to be taking place though not of similar historical events.

In Ramah binti Ta’at v. Laton binti Malim Sutan [1925- 1938] Vols. 5-6, FMSLR 128, the main issue before the Supreme Court was whether the principle of Islamic Law on what is now known as “Harta Sepencarian” had application in the case. Thorne J. delivering the majority judgment held that Islamic Law is not a foreign law but a local law, and in the course of his judgment, he addressed his opinion to the then Colonial Government in these words:

It is perhaps not out of place for me to remark that the time has now arrived when the attention of the executive might well be drawn to the existing state of the law as affecting Mohammedans in the Federated Malay States. Mohammedan Law is varied in the different States in the Federation, and in some instances in different districts of the same State, by local customs having the force of law, and it would not be practicable therefore to pass a Federal Enactment dealing with all the States of the Federation.

It seems to me, however, that State Enactments might well be passed dealing with the questions of the rights of parties upon divorce, and upon succession to the estate of deceased intestates, which more commonly arise, and giving power to the Courts to take evidence in more involved cases not covered by the provisions of the Enactment as to the law of the matter in debate. Although I have held that the Supreme Court has jurisdiction to deal with such cases as the present, the further question emerges as to whether or not the Supreme Court is the proper tribunal for dealing with these cases, and whether it would not be more consonant with the views of those professing the Mohammedan religion that His Highness the Sultan in Council in each State should establish special courts for dealing with these cases with an appeal to His Highness the Sultan in Council in each case; of course the jurisdiction of the Supreme Court and of the Court of Appeal would properly be excluded by such Enactment.

The proposed exclusion of the jurisdiction of the civil courts in Islamic Family Law as envisaged by the Supreme Court in 1927, is now a reality with the coming into force of clause (1A) of Article 121 of the Federal Constitution with effect from 10 June 1988. It would have been a source of satisfaction to Thorne J. and Acton J. to know that in 1952 the first modern Enactment on Administration of Muslim Law was enacted by the Selangor State Legislature. Other states in the former FMS and unfederated Malay States followed suit.

On Merdeka Day, the Federal Constitution in Article 3(1) has declared that “Islam in the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation.” The very fact that people professing religions other than Islam are constitutionally guaranteed the right to practise their faith in peace and harmony, must necessarily mean that Muslims are also similarly guaranteed the right to practise Islam in the like manner. Being the religion of the Federation, Islam has a special position in Malaysia. The Ruler of a State of the Federation is the head of the religion of Islam in his State and the Yang di Pertuan Agong is Head of the religion of Islam in the Federal Territories of Kuala Lumpur and Labuan in addition of being so in his own State and in the states of Malacca, Penang, Sabah and Sarawak. Article 74(2) read with the Second List of the Ninth Schedule, confers the power to make law on the State Legislatures, and on Parliament in respect of the Federal Territories of Kuala Lumpur and Labuan on the subject of “Islamic Law and personal and family Law of persons professing the religion of Islam…”. This includes inter alia the Islamic Law relating to betrothal, marriage, divorce, dowry and maintenance, the constitution, organisation and procedure of Syariah Courts which shall have jurisdiction only over persons performing the religion of Islam. Thus, under para 4(e), that is, the Federal Legislature List of the Ninth Schedule, the power of Parliament to make law on civil and criminal law and procedure and the administration of justice including inter alia actionable wrongs, marriage and divorce; married women’s property and status, do not include Islamic personal law relating to marriage, divorce, family law, etc.

With effect from 10 June 1988, the new exclusion clause (1A) was introduced by the Constitution (Amdt.) Act 1988 (Act A704) which expressly excludes the jurisdiction of the High Court in Malaya and the High Court in Borneo, in respect of any, matter within the jurisdiction of the Syariah Court. By such exclusion, the intention of the new Clause (1A) is clearly to confer exclusive jurisdiction to the Syariah Courts to adjudicate on any matter which has been lawfully vested by law within the jurisdiction of the Syariah Court. In short, any jurisdiction lawfully vested in the Syariah Court is now exclusively within the jurisdiction of that court. Whether the vesting of such jurisdiction is valid is of course another matter which can be challenged under Article 4(3). As far as this appeal is concerned, the validity of the Administration of Islamic Law Enactment 1952 and the Islamic Family Law (Federal Territory) Act 1984 has not been challenged. Section 4 of the 1984 Act applies to all Muslims living in the Federal Territory and as well to all Muslims residing in the Federal Territory who are living outside the Federal Territory. The Act makes provisions on Islamic Law in respect of marriage, divorce, maintenance, guardianship and other matters connected with family life. The jurisdiction of the Syariah Court in Kuala Lumpur to deal with these matters is conferred by s. 45(3)(b) of the Administration of Muslim Law Enactment 1952 (State of Selangor Enactment No. 3 of 1952) which has been in force in Kuala Lumpur even before the creation of the Federal Territory. Although the 1952 Enactment has ceased to apply in the State of Selangor by the Administration of Islamic Law Enactment 1989 (which came into effect on 1 September 1991), the 1952 Selangor Enactment continues to be in force in Kuala Lumpur as modified by the Federal Territory (Modification of Administration of Muslim Law Enactment) Orders 1974 and 1981, vide PU(A) 44/1974 and PU(A) 390/1981.

Since s. 45(3)(b) Administration of Muslim Law Enactment 1952 confers jurisdiction on the Kuala Lumpur Syariah Court to hear and determine all actions and proceedings which relate to marriage or divorce in which all the parties profess the Muslim religion, the High Court’s specific jurisdiction under s. 24 Courts of Judicature Act 1964 on the subject matter of divorce and matrimonial causes and matters relating thereto are excluded by virtue of Article 121 clause (1A). The principle of interpretation of statutes demands that a general provision cannot override a specific one, and as such the High Court cannot invoke its general civil jurisdiction under s. 23 to revive a specific jurisdiction under s. 24 which has been excluded by the Constitution. The cause of action pleaded in Faridah‘s statement of claim is so intertwined with and ancillary to the main petition for a dissolution of the Muslim marriage in the Syariah Court that the High Court must clearly be held to have no jurisdiction in the matter. Any rivalry between the two jurisdictions must now be solved in terms of Article 121 clause (1A).

At p. 8 p of his judgment, the learned Judge stated that he had no hesitation on the authority of Ali Mat v. Jamaliah [1974] 1 MLJ 18 in holding that the High Court had jurisdiction to entertain the action of Faridah. But that authority was decided before the new clause (1A) was enacted and it should have been distinguished on that ground. The learned Judge also erred in law and in fact in his conclusion that the Administration of

Muslim Law Enactment 1952 as in force in the Federal Territory of Kuala Lumpur, and the Islamic Family Law (Federal Territory) Act 1984 do not confer adequate power to the Syariah Court for the protection of battered wives, and as such Faridah‘s predicament seems to have generated so much sympathy that the injunctive remedy would appear to have been granted as if on the basis of the doctrine of necessity, notwithstanding the provision of Article 121 clause (1A). Whilst there is room for concern, for the long delay in fixing the date of hearing due apparently to uncertainty on the part of the Syariah judges whether the petition should be filed in Selangor or in the Federal Territory, the fear of the learned Judge that the Syariah Court is powerless to protect battered wives, is unfounded. The alleged ill-treatment or act of cruelty by Habibullah, is amply covered by s. 127 of both the Selangor Islamic Family Law Enactment 1984 and the Islamic Family Law (Federal Territory) Act of 1984 which provides:

Any person who ill-treats his wife or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

As regards injunctive remedy against molestation of a wife pending divorce proceedings, the 1984 Act provides the necessary power to the Syariah Court to make restraining orders. Section 107(1) provides:

The court shall have power during the pendency of any matrimonial proceedings or on or after the grant of an order of divorce, fasakh or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.

On the facts of this case, it is reasonable to conclude that Faridah‘s application for dissolution of marriage in the Syariah Court must necessarily fall squarely under s. 52(1)(h)(i) of the 1984 Act, viz., dissolution of her marriage on the ground that her husband, Habibullah treats her with cruelty, that is to say habitually assaults her or makes her life miserable by cruelty of conduct.

On the constitutional issue, Mr. Balwant Singh Sidhu for Faridah has raised before us an interesting argument that clause (1A) of Article 121 is ineffective because the Constitution (Amdt) Act 1988 (Act A704) has failed to make the new provision retrospective from a date prior to 16 March 1964, that is, prior to the effective date of the Courts of Judicature Act 1964. Section 4 provides:

In the event of inconsistency or conflict between the Act and any other written law other than the Constitution in force at the commencement of this Act, the provision of this Act shall prevail.

(Emphasis supplied)

It is contended that since the new exclusion clause (1A) of Article 121, is inconsistent or in conflict with the provisions of the Courts of Judicature Act , by taking away the jurisdiction of the High Court conferred by ss. 23 and 24 , in respect of any matter within the jurisdiction of the Syariah Courts, the provision of the Act would prevail over the constitutional amendment unless the Constitution Amendment Act is made retrospective. Clause (1A) came into force only on 10 June 1988 and as such it is argued that the jurisdiction of the High Court under ss. 23 and 24 shall continue to prevail over or at least to be concurrent with the jurisdiction of the Syariah Court.

The learned Judge did not expressly state any particular opinion on how s. 4 of the 1964 Act should be construed. But Mr. Balwant Singh Sibhu contends that the conclusion of the learned Judge on jurisdiction is correct in law on the authority of Shahamin Faizual Kung Abdullah v. Asma Hj Junus [1991] 3 CLJ 2220 . There the High Court held that s. 4 of the Courts of Judicature Act 1964 is a provision “affecting the Constitution” as envisaged by the Federal Court in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67 at 72. After recognizing that the intention of Article 121 clause (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Courts, the judgment in Shahamin case concluded that the new clause (1A) had however failed in its objective for failure to make it retrospective and thereby was caught by s. 4 of the 1964 Act . The relevant part of the judgment in Shahamin case is as follows:

I have not overlooked Article 4(1) of the Constitution which provides:

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

It is true that the Constitution is the supreme law of the land. But “Law” in Article 4(1), with reference to Acts of Parliament, means federal law consisting of ordinary laws enacted in the ordinary way and not Acts affecting the Constitution. As Suffian LP said in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67, 71 col. 1, H & I.

In our judgment, in construing Article 4(1) and Article 159, the rule of harmonious construction requires us to give effect to both provisions and to hold and we accordingly hold that Acts made by Parliament, complying with the conditions set out in Article 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way. It is federal law of the latter category that is meant by law in Article 4(1); only such law must be consistent with the Constitution.

Section 4 of the Courts of Judicature Act , in my view, is a provision affecting the Constitution because its effect is to render ineffective amendments to the Constitution pertaining to the jurisdiction of the High Courts made after the date of its commencement unless made with retrospective effect.

Similarly, in the instant appeal, the learned Judge seemed to hold that because of s. 4 of the Courts of Judicature Act 1964 , the new clause (1A) is ineffective and therefore s. 23 of the Act prevails over the amendment to the Constitution. In the event, the learned Judge required expressed provisions in the Administration of Muslim Law Enactment or the Islamic Family Law Enactment to exclude the jurisdiction of the High Court. Thus at p. 12 of his judgment he said:

The jurisdiction of this court to entertain the plaintiff’s action is provided under s. 23 of the Courts of Judicature Act 1964 . Furthermore s. 4 of that Act states:

in the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail.

It follows therefore unless there are specific words in the Selangor Administration of Islamic Law Enactment 1952 or the Selangor Islamic Family Law Enactment 1984 (These two Enactments were relied by the learned Counsel for the defendant to support her contention about the jurisdiction of the Syariah Court) empowering the Syariah Court to deal exclusively with the dispute raised before this Court and to grant the reliefs sought by the plaintiff in this action, I am not prepared to accede to the contention of the defendant’s Counsel.

Before this court, it is never suggested that the Federal Constitution cannot be amended. Nor is it put in argument that Article 121 (1A) has destroyed the basic structure of the Constitution, or that it has failed to comply with all the conditions precedent and subsequent regarding manner and form prescribed by the Constitution itself. The general proposition (not raised in this appeal) that an amendment is not valid unless it is consistent with the existing Constitution, has been rejected by the Federal Court, in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67, LP delivering the judgment of the court said at p. 72:

If it is correct that amendments made to the Constitution are valid only if consistent with its existing provisions, then clearly no change whatsoever may be made to the Constitution; in other words, Article 159 is superfluous, for the Constitution cannot be changed or altered in any way, as if it has been carved in granite. If our Constitution makers had intended that their successors should not in any way alter their handiwork, it would have been perfectly easy for them to do so provide; but nowhere in the Constitution does it appear that that was their intention, even if they had been so unrealistic as to harbour such intention. On the contrary apart from Article 159, there are many provisions showing that they realized that the Constitution should be a living document intended to be workable between the partners that constitute the Malayan (later Malaysian) polity, a living document that is reviewable from time to time in the light of experience, and, if need be, amended.

Thus, it is not the case for Faridah that the new clause (1A) introduced by s. 8(c) Constitution (Amdt.) Act 1988 (Act A704) is invalid because of inconsistency with the existing Constitution by virtue of Article 4(1). The interplay between Article 4(1) and Article 159 has been resolved in Phang Chin Hock case by the application of the rule of harmonious construction. The Federal Court speaking through Suffian LP gave effect to both provisions by holding that:

… Acts made by Parliament, complying with the conditions set out in Article 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way. It is federal law of the latter category that is meant by law in Article 4(1); only such law must be consistent with the Constitution.

Now, arising from the judgment just quoted, what are “Acts affecting the Constitution” which the Federal Court was distinguishing from “ordinary laws enacted in the ordinary way”? In the context of the judgment, on the construction of Article 4(1) and Article 159, “Acts affecting the Constitution” mean no more than Acts of Parliament which amend the Constitution through the legislative process under Article 159, such as the one under consideration, namely the Constitution (Amdt.) Act 1988 which introduces the new clause (1A) of Article 121. Accordingly, the Courts of Judicature Act 1964 including s. 4 does not qualify as an Act or a statutory provision “affecting the Constitution” because it is an ordinary law or an ordinary statutory provision enacted not under Article 159 but enacted in the ordinary way.

In the circumstances, this court must depart from the judgment of the High Court in Shahamin case relied upon by Mr. Balwant Singh Sidhu, as an authority for the proposition that s. 4 of the Courts of Judicature Act is a provision “affecting the Constitution” in the context understood in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67. If indeed, s. 4 is intended to affect the Constitution by rendering ineffective amendment to the Constitution properly enacted under Article 159, unless made with retrospective effect to a date prior to the date of coming into force of the Courts of Judicature Act 1964 , then to that extent, it is clearly ineffective under Article 4(1) because federal law enacted in the ordinary way cannot override the provision of the Constitution as amended from time to time.

Further the provision of s. 4 of the Courts of Judicature Act itself, does not support the proposition that is is capable of rendering ineffective for whatever reason the provisions of any Constitution Amendment Act enacted under Article 159. The words, “other than the Constitution” in s. 4 are not mere surplusage. Under Article 160 the term “written law” includes the Constitution and the word “law” and “federal law” includes “any Act of Parliament” which amends the Constitution under Article 159. The intention of Parliament in s. 4 is expressly to exclude the Constitution or any Act of Parliament enacted under Article 159 which amends the Constitution. In any event, therefore, s. 4 of the 1964 Act is not applicable to the Constitution (Amdt.) Act 1988, and it cannot prevail over clause (1A) Article 121 of the Constitution. In the result, the learned Judge erred in law in holding that the High Court has jurisdiction in Faridah‘s claim on the ground that clause (1A) is lame and ineffective.

As regards the alternative argument on jurisdiction under the Married Women Act 1957, s. 9(2) provides:

Except for the protection or security of his or her property, no husband or wife shall be entitled to sue the other for a tort.

In view of the Court’s conclusion on the constitutional issue under Article 121 clause (1A), there is no real necessity to deal with it. But for the sake of completeness, even if the Court were to treat the statement of claim as a claim unconnected with marriage and divorce, Faridah‘s cause of action against Habibullah would still remain in tort for actionable wrong arising from the alleged criminal acts under ss. 323 and 324 of the Penal Code. In rejecting s. 9(2) argument, the learned Judge in the final para of his judgment had this to say: For the above reasons, I hold that s. 9(2) of the Married Women Ordinance 1957 does not apply as the plaintiff’s action is grounded on criminal offences committed or threatened to be committed against her.

The above reasoning does not appear to be correct. Merely because a cause of action is grounded on criminal offences does not alter a civil claim in tort to a criminal matter. When dealing with Faridah‘s claim and application for ex-parte interlocutory injunction, the learned Judge is obviously exercising the civil jurisdiction of the High Court. It is trite law that an offender against the Penal Code may be sued in tort for the wrongful act. In this case, the alleged liability of Habibullah, as pleaded in the statement of claim, is in tort arising from the commission of a matrimonial offence or misconduct, and as such the learned Judge also erred in the alternative in holding that Faridah‘s claim is not in tort and in rejecting the argument under s. 9(2). On this issue the argument put forward by Mr. Balwant Singh Sidhu is extremely weak. Learned Counsel is forced to admit that Faridah‘s claim before the learned Judge is in tort, and that damages and injunction are civil remedies, notwithstanding that the cause of action has arisen from the commission of criminal offences, committed in the course of a subsisting marriage.

The final argument canvassed by Mr. Balwant Singh Sidhu, is that Faridah is no longer a Muslim, and as such the Syariah Court has no jurisdiction in the matter at all.

It is true that in para 12 of her statement of claim, Faridah alleges that on 12 April 1989, she had revoked her Muslim Faith by means of a statutory declaration before a commissioner of oath owing to her belief that “Islam could not provide enough protection for battered wife”. But it is equally true that there is an uncontradicted documentary evidence in a form of a letter dated 20 Mat 1989 (Exhibit “MH-1”) from the Kadi of Petaling Jaya, Selangor to the effect that on 16 May 1989, at his office Faridah had retracted her renunciation of Islam and renewed her faith in the religion. The particulars of this matter are contained in paras 3 and 6 of Habibullah’s supplementary affidavit dated 28 August 1989. For the determination of this question, it is relevant to refer to s. 5 of the Islamic Family Law (Federal Territory) Act 1984 which provides:

If for the purposes of this Act any question arises as to whether a person is a Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, beliefs, conduct, behaviour, character, acts or omissions of that person.

In Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam [1992] 1 MLJ 1 at 9 , Mohamed Yusoff SCJ, has also expressed the following views:

It is apparent from the observation made by the learned Judicial Commissioner that the determination of the question whether a person was a Muslim or had renounced the faith of Islam before death, transgressed into the realm of Syariah Law which needs serious considerations and proper interpretation of such law. Without proper authority to support his contention, it is not sufficient to say whether there is or there is not a condition precedent for a person to become a Muslim; or that if the deceased were proved to have had said his prayers at a Sikh temple he was definitely an apostate.

The present question, in my view, cannot be determined by a simple application of facts as has been found by the learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence.

On this view it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.

On the test of general reputation, there is no evidence before the court, apart the statutory declaration sworn before Madam Navamoni (see Exhibit “RJ-1”) to suggest that Faridah has effectively renounced her Islamic faith and thereby committed apostasy. She is lawfully married to Habibullah in 1965 under Islamic law as evidenced by the Marriage Certificate (see p. 76 of Appeal Record). There are four children to the marriage, all of whom, like their parents, have Muslim names.

The writ in this case was filed on 14 February 1989 and it is interesting to note that the statutory declaration was made by Faridah on 12 April 1989, that is, the very date that her solicitor, Rubiah bte Jaafar affirmed an affidavit exhibiting the statutory declaration. The identical date is startling and gives rise to a strong probability that the declaration was hastily made on inadequate legal advice to forestall any application to set aside the interlocutory injunction. Be that as it may, s. 46 of the Islamic Family Law (Federal Territory) Act 1984 provides that the renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage, unless and until so confirmed by the Syariah Court. Further, under s. 130, a spouse who by deception makes himself or herself an apostate in order to annul his or her marriage commits an offence.

This Court, as indeed it seems the trial Judge, can only conclude that both Faridah and Habibullah are Muslims at all material times. The argument that Mr. Balwant Singh Sidhu tried to introduce in this court on apostasy, or that Faridah was not a Muslim at any material time must therefore be rejected.

The appeal is accordingly allowed with costs both here and in the Court below. The ruling of the High Court on jurisdiction is reversed, and both the application under O. 18 and 19 RHC and the application to set aside the ex-parte interlocutory injunction must necessarily succeed, and they are hereby allowed. The deposit in this appeal is refunded.

Gunn Chit Tuan SCJ: One Faridah bt. Dato Talib (“the plaintiff”) had on 14 February 1989, filed a suit in the High Court at Kuala Lumpur against her husband, one Mohd. Habibullah bin Mahmood (“the defendant”). In a statement of claim, the plaintiff averred that she is the wife of the defendant by way of marriage solemnised on 5 August 1965.

She alleged that during the course of marriage, the defendant had battered her on numerous occasions. It was also averred that the plaintiff, through her lawyers Messrs. Sheikh Shatar Cheah & Tan, had petitioned for an irrevocable divorce at the Mahkamah Syariah, Kuala Lumpur, but the Syariah Court Judge had on 24 March 1989, dismissed the petition for want of jurisdiction until and unless consent is obtained from the Jabatan Agama Islam, Petaling Jaya.

And on 29 March 1989, the plaintiff’s solicitors duly applied for the said consent which is still pending. On 12 April 1989, the plaintiff by way of a statutory declaration affirmed that she had renounced her Muslim faith. She therefore claimed damages for acts of assault and battery committed by the defendant against her and also an injunction to restrain the defendant by himself, his servant, agent or otherwise howsoever from assaulting, harassing, molesting or interfering, calling and harassing by telephone calls etc. or in any manner disturb her. The plaintiff had also applied for by summons in chambers and on 14 April 1989, obtained a temporary injunction restraining the defendant from assaulting, harassing, molesting or interfering with her, with liberty to the defendant to apply to set it aside.

A notice of motion was filed by the defendant on 28 April 1989, to set aside the order of 14 April 1989, granting the temporary injunction. When the parties appeared before Lim Beng Choon J. on 30 August 1989, the High Court was asked to decide two issues, namely:

(i) whether the High Court had jurisdiction to adjudicate on the plaintiff’s action since it involved a matter which fell exclusively within the jurisdic- tion of the Syariah Court; and

(ii) whether the plaintiff could institute the action against the defendant when s. 9(2) of the Married Women Act 1957 , prohibited the wife from suing her husband in tort;

Lim Beng Choon J. held on 14 October 1989, that a perusal of the statement of claim had convinced him that the plaintiff’s action is based on an actionable wrong of assault and battery which is both a civil and criminal wrong. Although His Lordship had not overlooked the fact that the plaintiff had instituted divorce proceedings in the Syariah Court, he was however of the view that a divorce action before the Syariah Court could not render her cause of action in the High Court less defective, nor can the said divorce action prevent her from seeking an injunction from the High Court to prevent her personal safety from being violated. His Lordship stated further, relying on Rediffusion (Hong Kong) v. Attorney General of Hong Kong [1970] AC 1136, 1154, that for purposes of answering the jurisdictional question, the High Court must assume that if the action were allowed to proceed, the plaintiff would be able to establish that the act and conduct of the defendant as alleged in the statement of claim would be unlawful and would affect adversely her personal safety.

Lim Ben Choon J. also held that the jurisdiction of the High Court to entertain the plaintiff’s action is provided under s. 23 of the Courts of Judicature Act 1964 , as well as s. 4 of that Act which states that:

4. In the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail.

He concluded that he had no hesitation, on the authority of Ali Mat v. Jamaliah [1974] 1 MLJ 18, in holding that the High Court had jurisdiction to entertain the action of the plaintiff.

As regards the second issue, the learned Judge held that s. 9(2) of the Married Women Act 1957 , did not apply as the plaintiff’s action was grounded on criminal offences committed or threatened to be committed against her.

The defendant appealed to the Supreme Court and before us Encik Mohd. Raziff bin Mohd. Zahir, the first Counsel for the defendant, referred to Article 121(1A) of the Constitution which reads as follows:

(1A) The Courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts. and contended that the learned Judge had erred in relying on ss. 23 and 24 of the Courts of Judicature Act 1964 . Counsel stated that with the amendment of the Constitution, Ali Mat v. Jamaliah was no longer good law and he then referred to the views of Hashim A. Yeop Sani CJ and Mohd. Yusoff SCJ (as they then were) in Dalip Kaur v. Pegawai Polis, Daerah, Bukit Mertajam & Anor. [1992] 1 MLJ 1 , 7, 10, both of whom had stated that the new clause (1A) of Article 121 of the Constitution, which came into effect on 10 June 1988, had taken away the jurisdiction of the civil courts in respect of matters within the jurisdiction of the syariah courts.

Counsel then referred to the Islamic Family Law (Federal Territory) Act 1984, and stated that the learned Judge had also erred when he relied on Rediffusion (Hong Kong) v. Attorney General of Hong Kong, which he contended was irrelevant to the present case. He referred to the following s. 107 of the Islamic Family Law (Federal Territory) Act 1984:

107(1) The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of an order of divorce, fasakh, or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation. (2) Failure to comply with an order made under this section shall be punishable as a contempt of Court.

and pointed out that a Court of a Kathi or Kathi Besar in the Federal Territory constituted under the Administration of Muslim Law Enactment 1952, of the State of Selangor has power to grant an injunction against acts of molestation. Reference was also made to the following s. 127 of the Islamic Family Law (Federal Territory) Act 1984:

127. Any person who ill-treats his wife or cheats his wife of her property commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.

which, Counsel pointed out, punishes any person for ill-treatment of his wife. Counsel stated that the Syariah Courts also have criminal jurisdiction and referred to the following s. 2 of the Syariah Courts (Criminal Jurisdiction ) Act 1965 (Revised – 1988):

2. The Syariah Courts duly constituted under any law in a State and invested with jurisdiction over persons professing the religion of Islam and in respect of any of the matters enumerated in List II of the State List of the Ninth Schedule to the Federal Constitution are hereby conferred juris- diction in respect of offences against precepts of the religion of Islam by persons professing that religion which may be prescribed under any written law:

Provided that such jurisdiction shall not be exercised in respect of any offence punishable with imprisonment for a term exceeding three years or with any fine exceeding five thousand ringgit or with whipping exceeding six strokes or with any combination thereof.

Encik Pawancheek bin Marican, the second Counsel for the appellant, contended that the intention of Parliament in enacting Article 121(1A) was to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Courts. He also contended that s. 4 of the Courts of Judicature Act 1964 , cannot affect the application of Article 121(1A) of the Constitution as the former is inconsistent with Article 121(1A) and is therefore null and void by virtue of Article 4(1) of the Constitution, which declares that the Federal Constitution is the supreme law of the Federation. He then referred us to the following passage in the judgment of Suffian FJ (as he then was) in Assa Singh v. Menteri Besar, Johore [1969] 2 MLJ 30, 39:

The first part of clause (1) of article 4 provides that the Constitution shall be the supreme law of the land and one would therefore expect it to follow that any law which is inconsistent with the Constitution is void, at least to the extent of the inconsistency, but the Constitution, as the learned Solicitor-General points out, draws a distinction between:

(a) pre-Merdeka law and (b) post-Merdeka law

which is inconsistent with the Constitution.

The constitutional treatment of the two categories of inconsistent laws is quite different. Article 4(1) provides that any post-Merdeka law which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.

Article 162 on the other hand provides that any pre-Merdeka law such as the Enactment shall continue in force on and after Merdeka Day. That is so even if it is inconsistent with the Constitution. It may, however, be repealed by the appropriate legislature. Until so repealed it may be modified without going to Parliament, simply by order of His Majesty within a period of two years beginning with Merdeka Day for the purpose of bringing its provisions into accord with the Constitution. If it has not been modified by His Majesty under article 162 or if it has not been modified otherwise, then under clause (6) any court applying its provision must apply it with the necessary modifications to bring it into accord with the Constitution. Counsel stated that as the Courts of Judicature Act 1964 , is a post-Merdeka law, s. 4 thereof is void by virtue of Article 4(1) of the Constitution as it is inconsistent with Article 121(1A). He contended that the learned Judge had no power to hear the proceedings filed by the plaintiff in the High Court which had no jurisdiction to entertain her claim by virtue of the fact that the subject matter of the claim falls within the jurisdiction of the Syariah Courts.

Encik Pawancheek bin Marican then referred to Shahamin Faizul Kung bin Abdullah v. Asma bt. Haji Junus [1991] 3 CLJ 2220 , 2225, in which case Datuk Edgar Joseph Jr. J. (as he then was) had an opportunity to construe s. 4 of the Courts of Judicature Act 1964 , in the light of a conflict arising between the jurisdiction of the Penang Syariah Court and that of the Penang High Court in respect of the guardianship of a Muslim infant. His Lordship in that case had stated that:

It is obvious that the draftsman had intended by Article 121(1A) to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Courts. The only question which now arises is whether he had succeeded in that objective. If he has not then the Court will not come to his aid …

In view of its pivotal importance regarding this part of the case, I must now, once again, reproduce s. 4 of the Courts of Judicature Act ; it reads:

In the event of inconsistency or conflict between this Act and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail.

(Emphasis supplied by the learned Judge)

The Courts of Judicature Act , except for s. 5 , came into force on 16 March 1964. Section 5 came into force on 16 September 1964. But, Article 121(1A), as I have already noted, came into force only as recently as 10 June 1988 by virtue of Act A704. In other words, it was not in force at the date of the commencement of the Courts of Judicature Act . Therefore, by virtue of s. 4 of the Courts of Judicature Act , ss. 23 and 24 would, in my opinion, still prevail to confer jurisdiction on this Court to hear the present application. It would have been otherwise if Article 121(1A) had been enacted with retrospective effect so as to have been in force at the date of commencement of the Courts of Judicature Act .

For support of the above view, the learned Judge cited the following passage in the judgment of Suffian LP (as he then was) in the Federal Court case of Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67, 72:

In our judgment, in construing Article 4(1) and Article 159, the rule of harmonious construction

requires us to give effect to both provisions and to hold and we accordingly hold that Acts made by Parliament, complying with the conditions set out in Article 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way. It is Federal Law of the latter category that is meant by law in Article 4(1); only such law must be consistent with the Constitution.

After referring to the above passage, the learned Judge then concluded as follows:

Section 4 of the Courts of Judicature Act , in my view, is a provision affecting the Constitution because its effect is to render ineffective amendments to the Constitution pertaining to the jurisdiction of the High Courts made after the date of its commencement unless made with retrospective effect.

It was the appellant’s contention that His Lordship had erred in coming to the decision that he did in the Shahamin case. Counsel submitted that the learned Judge had misconstrued the meaning of the words “Acts affecting the Constitution” used by Suffian LP (as he then was) in Phang Chin Hock’s case. He contended that in Phang Chin Hock’s case, Suffian LP (as he then was) has used those words to mean Acts of Parliament enacted for the purpose of amending the Constitution. Counsel submitted that that meaning could be easily gauged from the following paragraph preceding the passage quoted by the learned Judge:

If it is correct that amendments made to the Constitution are valid only if consistent with its existing provisions, then clearly no change whatsoever may be made to the Constitution; in other words, Article 159 is superfluous, for the Constitution cannot be changed or altered in any way, as if it has been carved in granite. If our Constitution makers had intended that their successors should not in any way alter their handiwork, it would have been perfectly easy for them to so provide; but nowhere in the Constitution does it appear that that was their intention, even if they had been so unrealistic as to harbour such intention. On the contrary apart from Article 159, thee are many provisions showing that they realized that the Constitution should be a living document intended to be workable between the partners that constitute the Malayan (later Malaysian) polity, a living document that is reviewable from time to time in the light of experience and, if need be, amended.

Counsel reiterated that from the above-quoted passage in the judgment of Suffian LP (as he then was), it is obvious that the words “Acts affecting the Constitution” mean Acts of Parliament enacted for the purpose of amending the Constitution following the procedure laid down in Article 159 of the Constitution. He submitted that in essence there are two kinds of Acts of Parliament, namely:

(i) ordinary Acts of Parliament; and (ii) Acts of Parliament enacted for the purpose of amending any provision of the Constitution.

Encik Pawancheek further submitted, with respect to Datuk Edgar Joseph Jr. J. (as he then was), that there is no such thing as “Acts affecting the Constitution” as the unhappy choice of words by Suffian LP (as he then was) in Phang Chin Hock’s case had led the learned Judge in Shahamin’s case to reach a wrong conclusion as to the import of the words. Counsel added that it is pertinent to note that Suffian LP (as he then was) in Phang Chin Hock’s case had drew a distinction between the Indian Constitution and the Malaysian Constitution with regard to the power of Parliament to enact Acts of Parliament which are inconsistent with the provisions of the Constitution. His Lordship had traced the history of the two Constitutions in order to show that the Malaysian Parliament has power to enact Acts of Parliament for the purpose of amending the Constitution even if such Acts are inconsistent with the subsisting provisions of the Constitution. Counsel said that in Shahamin’s case, the learned Judge had construed Article 121(1A) of the Constitution in the way that ordinary statutes are interpreted by suggesting that Article 121(1A) should have been made retrospective in order not to fall foul of s. 4 of the Courts of Judicature Act 1964 .

It was the final submission of Encik Pawancheek bin Marican that based on his contention above Article 121(1A) should override s. 4 of the Courts of Judicature Act 1964 , so as to enforce the legislature’s intention to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Courts.

The defendant’s third Counsel, Cik Kamar Ainiah bt. Kamaruzaman, referred to the following s. 3 of the Married Women Act 1957 , and stated that the application of that Act to Muslims is subject to Islamic Law:

3. This Act shall have effect in the States of Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Trengganu and the Federal Territory of Kuala Lumpur in relation to Muslim married women and their property, rights and obligations subject to the Islamic Law and the customs of the Malays governing the relations between husband and wife so far as the same may be applicable, and in the States of Malacca and Penang subject to the Islamic Law of the States in all cases to which such lastmentioned Islamic Law extends.

Counsel then referred to s. 9(2) of that Act , which reads as follows:

9(1) … 9(2) Except for the protection or security of his or her property no husband or wife shall be entitled to sue the other for a tort.

and stated that the remedies of a married woman for protection and security of her separate property do not include the right to sue her husband for a tort.

Mr. Balwant Singh Sidhu, Counsel for the plaintiff, submitted, without stating any reasons, that the decision of Datuk Edgar Joseph Jr. J. (as he then was) in the Shahamin’s case should apply. He then stated that in considering whether the plaintiff is an apostate, the relevant date is the date when the order was made by the High Court because jurisdiction was not exercised before that date. Counsel pointed out that the plaintiff had made the following “surat akuan” on 12 April 1989:

SURAT AKUAN

Saya, HAJJAH FARIDAH BT. DATOTALIB (NO. K/P. 4608422) yang beralamat di No. 73, Lorong Titawangsa 9, Taman Tasik Titiwangsa, Kuala Lumpur dengan sesungguhnya dan sebenarnya mengaku bahawa:

1. Saya adalah seorang Melayu berugama Islam. 2. Saya telah berkahwin dengan seorang Islam bernama Mohd. Habibullah bin Mahmud, keturunan India sejak 5 Ogos 1965. 3. Saya dengan fikiran yang waras tanpa sebarang dorongan dan tekanan daripada mana-mana pihak istihar diri saya terkeluar daripada ugama Islam. 4. Saya masih dan ingin mengekalkan nama saya seperti tercatit didalam surat beranak dan kad pengenalan saya. 5. Dan saya membuat Surat Akuan ini dengan kepercayaan bahawa butir-butir yang diberi adalah benar serta mengikut Undang-Undang Surat Akuan 1960.

Diperakukan dan ditandatangani ) oleh FARIDAH BT. DATOTALIB ) DI KUALA LUMPUR, WILAYAH ) t.t. Persekutuan pada 12 April 1989 ) ….. pada pukul 10 pagi )

Dihadapan saya, t.t. ….. NAVAMONI PESURUHJAYA SUMPAH MAHKAMAH TINGGI KUALA LUMPUR

Mr. Balwant Singh Sidhu also referred us to the following letter written on 20 May 1989 by the Pejabat Agama Islam, Petaling Jaya, to the Dato‘ Pengarah, Jabatan Agama Islam Selangor:

Assalamualaikum wr. wb. PEJABAT AGAMA ISLAM 46000 PETALING JAYA Ruj. Kami: (18)dlm.PAI.PJ.020/04/89 Tarikh: 14 Syawal 1409 20 Mei 1989

Dato‘ Pengarah Jabatan Agama Islam Selangor 40676 Shah Alam SELANGOR DARUL EHSAN Ybh. Dato‘,

Puan Hajjah Faridah binti DatoTalib

Dengan segala hormatnya dimaklumkan, sehubungan dengan pengakuan penama ini di Mahkamah Tinggi Kuala Lumpur telah keluar dari Islam telah dimaklumkan ke pejabat ini. 2. Dan sehubungan dengan itu lagi pejabat ini telah membuat panggilan hadir pada tarikh 16 Mei 1989 jam 10.00 pagi. Dengan rasa syukur Puan Hajjah Faridah telah pun hadir mengikut yang diberikan:

a. Puan Hajah Faridah memperakui yang ia ada membuat pengumuman keluar Islam di Mahkamah Tinggi Kuala Lumpur; b. Tetapi ia telah memberi pengakuan selepas itu ia telah taubat dan rujuk kepada Islam semula dan ada menuaikan ibadah sembahyang.

Sekian permakluman mengenai perkara ini.

Wassalam.

“BERKHIDMAT KERANA ALLAH UNTUKNEGARA.” Saya yang jujur, t.t. ……

Counsel then referred to the following s. 5 of the Islamic Family Law (Federal Territory) Act 1984:

5. If for the purposes of this Act any question arises as to whether a person is a Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, beliefs, conduct, behaviour, character, acts, or omissions of that person.

and contended that the criterion for deciding whether a person is a Muslim is provided in that section.

With respect to the submission of Mr. Balwant Singh Sidhu regarding whether the plaintiff could be considered an apostate, reference ought to be made to the dictum of Mohamed Yusoff SCJ (as he then was) in the recent decision of this Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor (supra). , when it was pointed out that in determin- ing whether a Muslim has renounced Islam, the only forum qualified to answer the question is the Syariah Court. But in deciding the first issue raised in this case, it is not necessary for a civil court to consider that point. And in any event it would appear from the evidence adduced that both parties were Muslims when this case was adjudicated by the High Court.

As regards the first issue concerning jurisdiction for the determination of the High Court, we could start by looking at Article 4(1) of the Constitution, which is as follows:

4(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

It will be noticed that the word “law” is followed by the word “passed”. The word “law” must therefore mean Acts passed by Parliament and I would, with respect, agree with the judgment of Suffian LP (as he then was) in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67 that Acts made by Parliament complying with Article 159, which provides for amendment of the Constitution, are valid even if inconsistent with the Constitution. On the other hand, Acts which do not amend the Constitution must be consistent with it.

For an explanation on how the Constitution should be interpreted, I cannot do better than to refer to the following passage in the judgment of Raja Azlan Shah Ag. LP (as he then was) in Dato Menteri Othman bin Baginda & Anor. v. Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29:

In interpreting a Constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a Constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way – ‘with less rigidity and more generosity than other Acts’ (see Minister of Home Affairs v. Fisher [1979] 3 All ER 21). A Constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: ‘A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a Court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms’. The principle of interpreting Constitutions ‘with less rigidity and more generosity’ was again applied by the Privy Council in Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds [1979] 3 All ER 129, 136.

It is in the light of this kind of ambulatory approach that we must construe our Constitution.

Turning to s. 4(1) of the Courts of Judicature Act 1964 , I note that the marginal note indicates that it is a “Provision to prevent conflict of laws”. That, in my view, cannot mean a conflict between any written law and the Constitution which is the supreme law as provided in Article 4 and which was in force when the Courts of Judicature Act 1964 , was enacted. By the use of the words “other than the Constitution”, the legislature had in mind Article 4 which declared the Constitution as the supreme law. It follows, in my view, that the legislature intended the words “in force at the commencement of this Act” to refer to the provisions of any other written law which, in the event of inconsistency or conflict between the Courts of Judicature Act and that other written law (other than the Constitution), shall not prevail over the provisions of the Courts of Judicature Act 1964 . Sections 4 , 23 and 24 of the Courts of Judicature Act 1964 , which prevail over the provisions of any other written law, cannot prevail over Article 121(1A) of the Constitution. And it is clear from the provisions of Article 121(1A) of the Constitution that Parliament had declared and intended that as from 10 June 1988, the civil courts should have no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.

What then are matters within the jurisdiction of the Syariah Courts? Both the learned trial Judge and Counsel for the parties were aware of and have referred to the following s. 45 of the Administration of Muslim Law Enactment 1952, (the said Enactment) as modified by the Federal Territory (Modification of Administration of Muslim Law Enactment) Order 1974, regarding the local limits and extent of jurisdiction of Religious Courts:

45(1) The Court of the Kathi Besar shall have jurisdiction throughout the Federal Territory and shall be presided over by the Kathi Besar.

(2) Subject as in this Enactment otherwise provided a Court of a Kathi shall have jurisdiction in respect of any civil or criminal matter of the nature hereinafter specified arising within the local limits of jurisdiction prescribed for it under the preceding section, or, if no local limits are so prescribed, within the Federal Territory, and shall be presided over by the Kathi appointed hereto.

(3) The Court of the Kathi Besar shall –

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under this Enactment, and may impose any punishment therefor provided; (b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties profess the Muslim religion and which relate to –

(i) betrothal, marriage, divorce, nullity of marriage, or judicial separation, (ii) any disposition of, or claim to, property arising out of any of the matters set out in sub-paragraph (i) of this paragraph, (iii) maintenance of dependants, legitimacy, guardianship or custody of infants, (iv) division of, or claims to, sapencharian property, (v) determination of the persons entitled to share in the estate of a deceased person who professed the Muslim religion, or of the shares to which such persons are respectively entitled, (vi) wills or death-bed gifts of a deceased person who professed the Muslim religion,

(vii) gifts inter vivos, or settlementsmade without consideration in money or money’s worth by a person professing the Muslim religion, (viii) wakaf or nazr, or (ix) other matters in respect of which jurisdiction is conferred by any written law:

Provided that it shall not ordinarily try any offence or hear or determine any action or proceeding in respect of which any Court of a Kathi has jurisdiction.

(4) The Court of a Kathi shall –

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under this Enactment for which the maximum punishment provided by law does not exceed imprisonment for three months or a fine of five hundred dollars or both, and may impose any punishment therefor provided;

(b) in its civil jurisdiction, hear and determine all such actions and proceedings as the Court of the Kathi Besar is authorized to hear and determine, in which the amount or value of the subjectmatter does not exceed ten thousand dollars, or is not capable of estimation in terms of money.

(5) No decision of the Court of the Kathi Besar or a Kathi shall affect any right of property of any non-Muslim.

(6) Nothing in this Enactment contained shall affect the jurisdiction of any Civil Court and, in the event of any difference or conflict arising between the decision of a Court of the Kathi Besar or a Kathi and the decision of a Civil Court acting within its jurisdiction, the decision of the Civil Court shall prevail.

It would appear from the above-quoted section that the Court of the Kathi Besar in the Federal Territory has civil jurisdiction to hear and determine all actions and proceedings in which all the parties profess the Muslim religion and in only matters specified in the above s. 45(3)(b) of the said Enactment but does not at present have civil jurisdiction to hear an action for a tort albeit by a wife against her husband and that therefore such an action could be heard by a civil court in the exercise of its jurisdiction. But that was not the end of the matter in this case because of the second issue.

As regards the second issue, there were no arguments from Counsel for both parties as to how the Married Women Act 1957 , should be applied to the plaintiff in accordance with s. 3 of the Married Women Act 1957 . In the absence of any assistance on the Islamic law and the customs of the Malays governing the relations between husband and wife so far as may be applicable to the parties, I can only state for the purposes of this case that the remedies of a Muslim married woman for the protection and security of her separate property are also to be found in s. 9(2) of the Married Women Act 1957 , as a married woman has been defined in that Act to include “any woman married in accordance with the rites and ceremonies required by her religion, manners or customs.” If that is correct, then, in my view, the plaintiff could not have instituted the action for a tort against the defendant by virtue of the present s. 9(2) of that Act because s. 9 of that Act only enables a wife to sue here husband for the protection and security of her property but otherwise forbids actions of tort between them. It follows that the plaintiff could not have instituted this action for damages for acts of assault and battery against the defendant because of that section. On that ground, the learned Judge should have struck out the plaintiff’s suit and also set aside his order of 14 April 1989, granting the temporary injunction.

For the reasons stated, I would therefore allow this appeal with half costs here and below, dissolve the temporary injunction and also order that the deposit be refunded to the appellant.

Categories: CaseLaws

Dalip Kaur v Pegawai Polis [1992] 1 MLJ 1:

DALIP KAUR GURBUX SINGH v. PEGAWAI POLIS DAERAH (OCPD), BUKIT MERTAJAM & ANOR.
SUPREME COURT, KUALA LUMPUR
HASHIM YEOP SANI CJ (MALAYA), HARUN HASHIM SCJ, MOHD. YUSOFF MOHAMED SCJ
[SC CIVIL APPEAL NO. 02-442-1991]
8 NOVEMBER 1991

 

JUDGMENT

 

Hashim Yeop Sani CJ (Malaya):

 

This appeal arose from the dismissal by the High Court Penang on 16 October 1991 of an application by the appellant for a declaration that her son, Gurdev Singh s/o Guruvak Singh (deceased) was at the time of his death on 3 October 1991 not a Muslim and/or had renounced the Islamic faith and also for the consequential declaration that she was entitled to claim the body of the deceased from the District Hospital mortuary, Bukit Mertajam.

 

The deceased was at the time of his death about 23 years old, born a Sikh and brought up in the Sikh faith. He had been living with his mother (the appellant) in the District of Kulim, in the State of Kedah. His body was found on 3 October 1991 at Jalan Mengkuang/Berapit, Kubang Semang, Bukit Mertajam. Prior to his death he was a supervisor at a factory in Kulim. The deceased had a girl friend (or fiancee) a Malay girl named Siti Noraini working at the same factory.

 

It is not disputed that the deceased converted to Islam on 1 June 1991 before the District Kadi of Kulim. It is also not disputed that the conversion was duly registered with the Majlis Agama Islam, Kedah in accordance with s. 139 of the Administration of Muslim Law Enactment 1962 of Kedah. In her originating summons the appellant contended that subsequent to the conversion and before his death the deceased had by a deed poll on 9 September 1991 renounced the Islamic faith and resumed the practice of the Sikh faith. It was also alleged that the deceased was rebaptised by a Sikh priest at a Sikh temple in Kulim about a month before his death and that the deceased had regularly attended the congregation at the Sikh temple thereafter. It was also contended that the deceased continued to eat pork and had not been circumcised.

 

In his written judgment the learned Judicial Commissioner set out the chronological events material to the case as follows:

 

1989 Deceased and Siti Noraini working in the same factory became acquainted.

 

1 June 1991 Deceased embraced Islam (not disputed).

 

6 September 1991 Deceased assaulted Siti Noraini in front of the factory because Siti Noraini went out with another man, a Chinese, by the name of Jeffrey. That evening deceased took Siti Noraini to a restaurant together with one Krishna Kumar.

 

7 September 1991 Deceased took Siti Noraini to Penang.

 

9 September 1991 The date of the alleged deed poll.

 

28 September 1991 Deceased and Siti Noraini were engaged at her house. Deceased as well as his brother (Balwinder Singh) went

 

to the ceremony. Deceased gave a ring to Siti Noraini. According to Siti Noraini in her evidence, the wedding was scheduled to take place on 25 November 1991.

 

2 October 1991 Deceased came to the house where Siti Noraini was staying at 11 p.m. and sent her to the factory to work. That was the last time that Siti Noraini saw the deceased.

 

3 October 1991 At 6.45 a.m. the police was informed of the deceased’s body.

 

At the conclusion of the hearing before the learned Judicial Commissioner, he came to the conclusion that the signature on the deed poll was not that of the deceased. He also rejected the evidence of the Sikh priest and that of the deceased’s brother with regard to the rebaptism and the congregation at the Sikh temple.

 

The appellant appealed. At the hearing of the appeal this Court remitted the case to the High Court for the learned Judicial Commissioner to refer certain questions of Islamic law that arose to the Fatwa Committee under s. 37 of the Enactment. The High Court sat again on 26 October 1991 for the purpose of referring the questions.

 

After receiving the fatwa from the Fatwa Committee the learned Judicial Commissioner sat on 28 October 1991 and confirmed his earlier findings and decision. Thus the present appeal.

 

The questions referred to the Fatwa Committee and the answers are reproduced below:

 

S: Adakah seseorang yang beragama Islam yang membuat peristiharan melalui deed poll bahawa dia menolak agama Islam terkeluar daripada agama Islam?

 

J: Jika seseorang yang beragama Islam yang membuat peristiharan melalui deed poll bahawa dia menolak agama Islam maka adalah ia terkeluar daripada Islam (Murtad).

 

S: Adakah seseorang yang beragama Islam yang pergi bersembahyang di kuil Sikh mengikut cara sembahyang agama Sikh terkeluar daripada agama Islam?

 

J: Seseorang yang beragama Islam yang pergi bersembahyang di kuil Sikh mengikut cara sembayang agama Sikh juga terkeluar daripada agama Islam (Murtad).

 

S: Adakah seseorang yang beragama Islam yang menjalani upacara memeluk agama Sikh terkeluar daripada agama Islam?

 

J: Seseorang yang beragama Islam yang menjalani upacara memeluk agama Sikh adalah terkeluar daripada Islam (Murtad). Namun begitu untuk menentukan sama ada seseorang itu terkeluar daripada Islam (Murtad) atau tidak hendaklah terlebih dahulu disabitkan oleh mana-mana Mahkamah Syariah dan dihukum ia sebagai terkeluar daripada Islam (Murtad) jika tidak ada disabitkan oleh mana-mana Mahkamah Syariah dan dihukum maka seseorang itu tetap di dalam agama Islamnya.

 

S: Adakah seseorang yang beragama Islam yang memakan daging babi terkeluar daripada agama Islam?

 

J: Seseorang yang beragama Islam yang memakan daging babi tiada terkeluar daripada agama Islam.

 

S: Adakah seseorang yang bukan beragama Islam yang kemudiannya memeluk agama Islam tetapi tidak berkhatan sehingga dia meninggal dunia, mati sebagai seorang yang bukan beragama Islam, semata-mata kerana dia tidak berkhatan?

 

J: Seseorang memeluk agama Islam yang tiada berkhatan sah Islamnya.

 

Pada pendapat Jawatankuasa Fatwa Majlis Agama Islam Negeri Kedah Darulaman yang bersidang pada 27 Oktober 1991 bahawa berhubung Gurdev Singh A/L Guruvak Singh, Kad Pengenalan: A 1028701 ia adalah seorang Islam dengan sahnya kerana telah sabit keIslamannya dengan ia mengucap dua kalimah Shahadat di hadapan Kadi Daerah Kulim, Negeri Kedah Darulaman bertarikh 1 Jun 1991 seperti yang tercatit di dalam borang ikrar orang yang masuk Islam bil. 5/91 dan berkekalan Islamnya kerana tidak ada hukuman dari mana-mana Mahkamah Syariah Negeri Kedah ini yang mensabitkan ia terkeluar daripada Islam.

 

After hearing Mr. Karpal Singh’s submission the issues to be determined in this appeal can in fact be reduced to only two points, namely:

 

(1) whether the learned Judicial Commissioner was correct in not allowing the case to be reopened after receiving the fatwa from the Fatwa Committee;

 

(2) the existence or otherwise of a genuine deed poll.

 

The deed poll is crucial to determine whether the deceased died a Muslim. The relevant part of the fatwa on this point states in effect that if a Muslim executes a deed poll renouncing Islam he becomes a “murtad” (apostate).

 

Under the Kedah Enactment only three provisions deal with matters relating to converts to Islam, namely ss. 139, 140 and 141. These provisions read:

 

139. The Majlis shall maintain a register of the names of all persons converted to the Muslim Religion within the State, together with such particulars in respect of their conversion as may be prescribed by rule.

 

140. No person shall be converted to the Muslim Religion otherwise than in accordance with Muslim Law and the provisions of this Enactment or any rules made thereunder.

 

141. Any Muslim who converts any person to the Muslim Religion shall as expeditiously as possible report such conversion to the Majlis with all necessary particulars.

 

There is no provision in the enactment for converts to leave Islam. There was such a provision in s. 146(2) of the Perak Enactment (the Administration of Muslim Law Enactment 1965) which was however repealed in 1975. The original provision in the Perak Enactment reads:

 

146(2) Semua orang Islam ada-lah terikat dengan Undang – undang ini, dan sa-kira-nya mana – mana orang Islam keluar daripada Ugama Islam maka hendaklah ia menyatakan kepada Mahkamah akan keputusannya itu dan Mahkamah itu hendak-lah mengishtiharkan perkara itu.

 

Only the words emphasised remain after the repeal. Before the repeal any convert who wished to leave Islam could have the matter certified by the Syariah Court.

 

We are of the view that clear provisions should be incorporated in all the State Enactments to avoid difficulties of interpretation by the civil Courts. This is particularly important in view of the amendment to Article 121 of the Federal Constitution made by Act A704 of 1988. The new Clause 1A of Article 121 of the Constitution effective from 10 June 1988 has taken away the jurisdiction of the civil Courts in respect of matters within the jurisdiction of the Syariah Courts. But that clause does not take away the jurisdiction of the civil Court to interpret any written laws of the States enacted for the administration of Muslim law. One of the opinions given in the fatwa of the Fatwa Committee in this case was that a convert who executes a deed poll renouncing Islam is a murtad (apostate). Of course this opinion is valid only for the State of Kedah. If there are clear provisions in the State Enactment the task of the civil Court is made easier when it is asked to make a declaration relating to the status of a person whether such person is or is not a Muslim under the Enactment. A clear provision can for example be in the form of a provision imposing obligation on the relevant authority to keep and maintain a register of converts who have executed a deed poll renouncing Islam.

 

As regards the first issue, the questions which were referred to by the trial Judge to the Fatwa Committee were agreed to by all parties concerned and the direction to refer the questions to the Fatwa Committee was given by this Court to the trial Judge for the trial Judge to apply the fatwa to the facts as found by him. Therefore the trial Judge was perfectly correct in not allowing the case to be reopened.

 

As regards the second issue, the trial Judge applied the test of proof on the balance of probabilities and he stated this frequently in his written judgment. Although it was an originating summons the case proceeded as a trial on the issues. A number of witnesses gave evidence.

 

Mr. Karpal Singh complained that the learned Judicial Commissioner should have accepted the affidavit of the Sikh priest relating to the alleged “baptism” of the deceased. But it must be noted that the trial Judge also saw and heard the evidence of Siti Noraini, the fiancee of the deceased and who was one of the last persons who saw the deceased before he was found dead the next morning. As the trial Judge said, it must not also be forgotten that Siti Noraini had nothing to gain by not telling the truth.

 

The trial Judge also heard the evidence of Balwinder Singh, brother of the deceased and made his own assessment of the latter’s testimony at length in his judgment.

 

Mr. Karpal Singh also complained that the learned Judicial Commissioner should not have relied on the evidence of the document examiner to come to a conclusion that the deed poll was a forgery. The document examiner who gave evidence stated that after examining ten specimen signatures and the signature on the deed poll and the signature on the form (the Borang Ikrar under the Enactment), he found that the signature on the deed poll did not originate from the writer of the signatures on the other documents. It is trite law that evidence by a handwriting expert should be viewed with caution as it is only an opinion evidence. But such evidence is entitled to be given proper consideration and weighed in the context of the other evidence available to the Court. See also PP v. Mohamed Kassim bin Yatim [1977] 1 MLJ 64. In this case the testimony of the document examiner was not the only evidence relied on by the trial Judge to come to his conclusion. It is clear in his judgment that he considered all the evidence before him including the sequence of events which he had set out in his judgment. He found it difficult to accept the story submitted on behalf of the appellant as being highly probable. At the conclusion of the hearing the trial Judge made a number of firm findings of fact which cannot be said to be against the weight of evidence.

 

As an appellate Court we would not like to interfere with the findings of fact of the trial Judge who saw and heard the witnesses and made an assessment on the credibility and weight of evidence before him. He did not misdirect himself in law or in fact.

 

We accordingly dismissed the appeal with costs. Deposit to respondent to account of taxed costs.

 

Mohd. Yusoff Mohamed SCJ:

 

I have had the benefit of reading the draft grounds of judgment of the learned Tan Sri Datuk Hashim Yeop A. Sani CJ (Malaya). I would come to the same conclusion in dismissing this appeal for different reasons.

 

The question foremost to be determined is whether the deceased had effectively renounced the Islamic faith during his lifetime.

 

The evidence that have been advanced to the Court was that the deceased has been baptised by a Sikh priest at his temple, he had executed a deed poll renouncing the Islamic faith and that his conduct did not conform to a person who professed to be a Muslim.

 

Quoting from a book by Prof. Dr. Ala’ul Deen Kharroufah entitled (“The Judgment of Islamon the Crimes of Salman Rushdie”), Encik Karpal Singh on behalf of the appellant said that pronouncing adherence to Islam should not be accepted from hypocrites and that actions on the part of the deceased implied disbelief from his own conviction. The learned Counsel quoted from p. 54 of the book to show that the deceased had become an apostate:

 

Apostasy according to the Shafei school is cutting one’s adherence to Islam by intending to do so, by saying something which would cause one to fall into disbelief, or by action. No difference here is to be observed between whether this was done with the intention of sarcasm and satire or through conviction.

 

Apostasy is the grossest form of disbelief and merits the heaviest punishment. It abrogates the good effect of one’s good deeds if the apostate does not repent and return to Islam before death. An apostate’s blood is to be spilled lawfully on account of his gross crime.

 

In evidence of their opinion, Shafeis provide the Quar’anic verse that whoever leaves Islam and dies a disbeliever will lose all his deeds and reside in hell.

 

The learned Counsel also cited Ng Wan Chan V. Majlis Ugama Islam Wilayah Persekutuan & Anor. [1991] 3 CLJ 328 at p. 333 wherein the learned Judge considered the conduct of the deceased in that case (almost similar as here) as a determining factor in deciding that the deceased there was not a Muslim. The learned Judge in that case amplified his grounds in holding that:

 

Murtad (apostasy) means a Muslim who renounces his religion (Islam) either by clearly declaring that he is no longer a Muslim or by his conduct which clearly shows that he is not a Muslim.

 

In the present case the learned Judicial Commissioner in declaring that the deceased was a Muslim observed in his judgment that:

 

Tetapi tidak makan babi bukan syarat terdahulu (condition precedent) menjadi Islam. Kedudukannya adalah seperti seorang Hindu yang memakan daging lembu, seorang Kristian berzina atau, jika tidak silap saya, seorang Sikh yang menghisap rokok. Perbuatan itu tidak menjadikan seseorang itu tidak beragama Hindu, Kristian atau Sikh, mengikut yang berkenaan.

 

He further observed:

 

Alegasi yang lebih serius ialah bahawa si mati bersembahyang di kuil Sikh dan dibaptisekan sebagai seorang yang beragama Sikh. Jika salah satu perbuatan ini terbukti tentulah dia telah murtad.

 

It is apparent from the observations made by the learned Judicial Commissioner that the determination of the question whether a person was a Muslim or had renounced the faith of Islam before death, transgressed into the realm of syariah law which needs serious considerations and proper interpretation of such law. Without proper authority to support his contention it is not sufficient to say whether there is or there is not a condition precedent for a person to become a Muslim; or that if the deceased were proved to have had said his prayers at a Sikh temple he was definitely an apostate.

 

The present question, in my view, cannot be determined by a simple application of facts as has been found by the learned Judicial Commissioner on the basis of veracity and relevancy of evidence according to civil law. Such a serious issue would, to my mind, need consideration by eminent jurists who are properly qualified in the field of Islamic jurisprudence.

 

In this view it is imperative that the determination of the question in issue requires substantial consideration of the Islamic law by relevant jurists qualified to do so. The only forum qualified to do so is the Syariah Court.

 

At the end of his argument before this Court on 21 October 1991, Encik Karpal Singh conceded that our civil Court is not qualified to determine this question in issue but urged that the Court directs the learned Judicial Commissioner to refer the matter to the Chairman of the Fatwa Committee under s. 37(1) of the Kedah Administration of Muslim Law Enactment 1962, based on the facts as found by the learned Judicial Commissioner for ruling by the Committee under s. 37(4) of the Enactment.

 

In my view Encik Karpal Singh’s suggestion is not feasible. The amendment to Article 121 of the Federal Constitution which came into effect on 10 June 1988 and the provision of the new Article 121(1A) has taken away the jurisdiction of the High Court in respect of any matter within the jurisdiction of the Syariah Courts and this is such a matter which the Syariah Court has to determine.

 

Further, I am also of the opinion that the provision in s. 37(4) of the Kedah Administration of Muslim Law Enactment 1962 has been overtaken and superseded by the constitutional amendment in Article 121(1A) of the Federal Constitution and in that view the request by Encik Karpal Singh for this Court to direct the learned Judicial Commissioner to refer the matter for a ruling by the Fatwa Committee under the impugned section of the enactment is not tenable.

 

However, by consent of all the parties, this Court at its sitting on 21 October 1991, had directed the learned Judicial Commissioner to refer to the Fatwa Committee of the State of Kedah certain questions of Islamic Law that arose in the proceedings for final determination of this suit by the learned Judicial Commissioner. The questions that were framed and referred to the Committee were agreed to by the parties concerned. The learned Judicial Commissioner after receiving the fatwa from the Fatwa Committee confirmed his earlier findings and decisions. On this basis, in my view, Encik Karpal Singh’s application to reopen the case on different issues cannot be allowed.

 

I am also of the view that since the fatwa was sought from the Committee, clear directions from the Committee should be adhered to.

 

The fatwa issued by the Committee is clear in what it says:

 

sama ada seseorang itu terkeluar daripada Islam (Murtad) atau tidak hendaklah terlebih dahulu disabitkan oleh mana-mana Mahkamah Syariah dan dihukum ia sebagai terkeluar daripada Islam (Murtad) jika tidak ada disabitkan oleh mana-mana Mahkamah Syariah dan dihukum maka seseorang itu tetap didalam agama Islamnya.

 

It further states that:

 

berkekalan Islamnya kerana tidak ada hukuman dari mana-mana Mahkamah Syariah Negeri Kedah ini yang mensabitkan ia terkeluar daripada Islam.

 

For these reasons I would also dismiss this appeal with costs.

 

Also found at [1991] 3 CLJ 2768

Categories: CaseLaws